Karnataka High Court
The State Of Karnataka vs Vishwanath S/O Shantappa And Ors on 30 March, 2017
Equivalent citations: AIR 2018 KARNATAKA 8, 2017 (4) AKR 305
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
R
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MARCH, 2017
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
WRIT APPEAL NO.200250/2016 (LB-ELE)
C/W
WRIT APPEAL No.200098/2016
In W.A.No.200250/2016:
BETWEEN:
1. The State of Karnataka
Represented by the Principal Secretary
to Government
Department of Urban Development
M.S. Building, Bengaluru-1
2. The Deputy Commissioner
Kalaburagi-1
...APPELLANTS
(By Sri R.V. Nadagouda, AAG
and Sri A. Syed Habeeb, AGA)
AND:
1. Vishwanath S/o Shantappa
2
Age: 36 years, Occ: Counsellor
Town Municipal Council
R/o Vidhya Nagar
Jewargi - 585 310
2. State Election Commission
No.26, Behind Food and Civil Supplies
Building, Cunningham Road
Bengaluru - 560010
3. The Town Municipal Council
Jewargi - 585 310
Represented by its Chief Officer
4. Mallamma W/o Mallanna
Age: years
Occ: TMC Member, Jewargi
Dist: Kalaburagi - 585 310
5. Mallamma W/o Neelakanth
Age: years
Occ: TMC Member, Jewargi
Dist: Kalaburagi - 585 310
6. Sharanamma W/o Yashwantraya
Age: years
Occ: TMC Member, Jewargi
Dist: Kalaburagi - 585 310
7. Renuka W/o Sharanu
Age: 30 years
Occ: TMC Member of Town Municipal, Jewargi
Dist: Kalaburagi - 585 310
...RESPONDENTS
(By Sri Ameet Kumar Deshpande, Advocate for R1,
Sri P.S. Malipatil, Advocate for R2,
3
Sri B.V. Jalde, Advocate for R3,
Sri Ganesh Naik, Advocate for R4
Sri V.S. Patil, Advocate for R5 & R6
Notice to R7 is dispensed with)
This writ appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside the
order of the Learned Single Judge dated: 22.03.2016
in W.P.No.200709/2016 and grant such other relief or
reliefs as this Hon'ble Court may deem fit in the
circumstances of the case.
In W.A.No.200098/2016:
BETWEEN:
Smt. Mallamma
W/o Mallanna
Aged about 52 years
Occ: TMC Member
Jewargi R/o Jewargi
District: Kalaburagi - 585 310
...APPELLANT
(By Sri Ganesh Naik, Advocate)
AND:
1. Sri Vishwanath S/o Shantappa
Age: 36 years, Occ: Counsellor
R/o Vidhya Nagar, Jevargi - 585 310
District: Kalaburagi
4
2. The State of Karnataka
Represented by the
Principal Secretary
Department of Urban Development
M.S. Building
Bangalore - 1
3. State Election Commission
No.26, Behind Food and Civil Supplies
Building, Cunningham Road
Bengaluru - 560010
4. The Deputy Commissioner
Kalaburagi
5. The Town Municipal Council
Jawargi represented by its
Chief Officer
6. Mallamma W/o Neelakanth
Age: 52 years
Occ: TMC Member, Jewargi
R/o Jewargi Dist: Kalaburagi - 585 310
7. Sharanamma
W/o Yashwanthraya
Aged about 38 years
Occ: TMC Member
Jewargi, R/o Jewargi
District: Kalaburagi - 585 310
8. Renuka W/o Sharanu
Age about 30 years
Occ: Member of Town Municipal, Jewargi
R/o Jewargi
5
Tq: Jewargi, District: Kalaburagi.
...RESPONDENTS
(By Sri Ameet Kumar Deshpande, Advocate for R1;
Sri R.V.Nadagouda, AAG &
Sri Syed Habeeb, AGA for R2 & R4;
Sri P.S. Malipatil, Advocate for R3,
Sri B.V. Jalde, Advocate for R5,
Sri V.S. Patil, Advocate for R6 & R7
Notice to R8 is dispensed with)
This writ appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside the
order of the Learned Single Judge dated: 22.03.2016
in W.P.No.200709/2016 (ELE).
These appeals coming on for admission this day,
Nagarathna, J., delivered the following:
JUDGMENT
Though these appeals are listed for admission, with the consent of learned counsel on both sides they are heard finally.
2. Writ Appeal No.200250/2016 is preferred by the State, while Writ Appeal No.200098/2016 is 6 preferred by Smt.Mallamma W/o Mallanna respondent No.5 in Writ Petition No.200709/2016.
3. These appeals have been filed, assailing order dated 22.03.2016, passed by the learned Single Judge of this court.
4. Briefly stated, the facts are that, the writ petitioner had assailed notification dated 24.02.2016 (Annexure-C to the writ petition) under which inter alia, the Office of President of the Urban Local Body namely, Town Municipal Council, Jewargi has been reserved for BCB-Woman. The Office of Vice- President has been reserved for Scheduled Caste woman. The contention of the petitioner in the writ petition was that having regard to proviso to Rule 13(5) of the Karnataka Municipalities (President and Vice-President) Election Rules, 1965 (hereinafter referred to as 'the Rules' for the sake of brevity), both 7 the Offices of the President and Vice-President could not have been reserved for women. That in the instant case, the post of Vice-President reserved for Scheduled Caste Woman and the post of President is reserved for BCB-Woman. The said writ petition was opposed by the State as well as by the private respondents. Learned Single Judge on noticing Rule 13(5) and its proviso observed that the State Government may take a decision with regard to the deletion of the proviso so that reservation of the Office of the President for a woman along with that of Vice- President simultaneously would become permissible. In the instant case, there being a legal lacuna as both the offices of President and Vice-President of the Town Municipal Council being reserved for women, learned single Judge reasoned that so long as said proviso was on the statute book both the offices of the President and Vice-President could not have been reserved for 8 women in so far as the Town Municipal Council, Jewargi, is concerned. Learned single Judge, consequently, allowed the writ petition and quashed the notification insofar as it was impugned in the writ petition. Being aggrieved by the said order the State and respondent No.5 in the writ petition have preferred these writ appeals.
5. Before the learned Single Judge the vires of the proviso to Rule 13(5) was not discussed as such as the same was not challenged by any of the respondents in the said petition and obviously the petitioner would not have challenged the vires of the said proviso as the petitioner sought relief on the basis of the said proviso.
6. We have heard learned Additional Advocate General for the appellant/State and learned counsel for the private appellant and learned counsel for the 9 respondents in both the appeals and perused the material on record.
7. During the course of submission our attention has been drawn to the order passed by this court (Dharwad Bench) by one of us (Nagarathna J.) in the case of T. Venkatesh vs. State of Karnataka reported in 2015(2) AKR 729 to contend that the very provisions namely proviso to Rule 13(5) and Rule 13-A(3) of the Rules which are the subject matter of controversy in these writ appeals had come up for consideration in the aforesaid writ petition and this court struck down the proviso to Rule 13(5) as well as Rule 13-A (3) when it considered the Rules concerning reservation of Offices of the President and Vice- President of the Town Panchayat, Kudligi, which was made under the Karnataka Municipalities Act, 1964. It is contended at the Bar by the learned counsel for the appellants that in view of the proviso being struck 10 down in the case of T.Venkatesh, the petitioner herein could no longer place reliance on the said proviso so as to assail notification at Annexure-C, dated 24/2/2016, in the instant case. Therefore, they submitted that the impugned order of the learned Single Judge may be set aside and modified in terms of the order passed in the case of T.Venkatesh. Learned counsel further brought to our notice that in the case of T.Venkatesh reference has been made to an earlier order of this court dated 14/02/2011, passed in W.P.No.5873/2001, by the Principal Bench at Bengaluru, by one of us (Nagarathna J.) which concerned reservation of the offices of the President and Vice-President in Zilla Panchayat and the provisions of the Karnataka Panchayat Raj (Reservation of Offices of Adhyaksha and Upadhyaksha,Zilla Panchayat)Rules 2005, came up for 11 consideration and an identical proviso in the said Rule was also struck down.
8. Learned Additional Advocate General has further drawn our attention to the affidavit filed by the Under Secretary to the Urban Development Department, Government of Karnataka to the effect that, the State Government intends to amend Rule 13(5) by deleting its proviso from the statute book and the same is under examination at the Government level. In the circumstances, the State has neither filed any appeal as against the order passed in the case of T.Venkatesh referred to above nor against the order dated 14/02/2011 also referred to above. He submitted that the writ appeals may be allowed and the order of the learned Single Judge be set aside by following the aforesaid dicta on which reliance has been placed.
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9. Per contra, learned counsel for respondent No.1/writ petitioner has submitted that so long as proviso to Rule 13(5) and Rule 13-A(5) remain on the statute book, the State is bound to give effect to that proviso and that Annexure-C notification issued in the instant case being contrary to the said proviso, the order of the learned Single Judge would not call for any interference. It is submitted that the writ appeals are without merit and same may be dismissed.
10. Learned counsel appearing for the other respondents however submitted that there are two orders passed by the Principal Bench at Bengaluru as well as Dharwad Bench striking down an identical proviso in the Rules referred to above and therefore, the benefit of those orders may be extended in these appeals also so as to maintain consistency with the orders passed by this court by two other Benches. 13
11. At the outset, reliance could be placed on the following observations of the Constitution Bench of the Hon'ble Supreme Court in the case of K.Krishna Murthy (Dr.) & others vs. Union of India & another [(2010) 7 SCC 202], which read as under:
"56. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservations in local self- government are intended to directly benefit the community as a whole, rather than just the elected representatives...
57. At the level of panchayats, the empowerment of the elected individual is only a means for pursuing the larger end of advancing the interests weaker sections. Hence, it would be counter-intuitive to exclude the relatively better-off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. It is quite 14 likely that such persons may be better equipped to represent and protect the interests of their respective communities...
x x x 68. The main criticism against the
reservation of chairperson positions in local self-government is that the same amounts to cent per cent reservation since they are akin to solitary posts. However, Article 243-D(4) provides a clear constitutional basis for reserving the chairperson positions in favour of SCs and STs (in a proportionate manner) while also providing that one-third of all chairperson positions in each tier of the Panchayati Raj institutions would be reserved in favour of women.
x x x
72. In the case of urban local bodies, Article 243-T(4) also enables reservation of chairperson posts in favour of the Scheduled Castes, Scheduled Tribes and women...
x x x
74. The offices of chairpersons in panchayats and municipalities are reserved as a measure of protective discrimination, so as to enable 15 the weaker sections to assert their voice against entrenched interests at the local level.
The patterns of disadvantage and discrimination faced by persons belonging to the weaker sections are more pervasive at the local level. Unlike elected representatives in the Lok Sabha and Vidhana Sabha who caann fall back on the support of mainstream political parties as well as media scrutiny as a safeguard against marginalisation and unjust discrimination, elected representatives from the disadvantaged sections may have no such support structures at the local level. In this respect, the Union Parliament though it fit to enable reservations of chairperson positions in order to ensure that not only are the weaker sections adequately represented in the domain of local self-government, but that they also get a chance to play leadership roles.
75. The other significant criticism of the reservation of chairperson posts in local bodies is that it amounts to an unreasonable limitation on the rights of political participation of persons who do not belong to the reserved categories...16
x x x
80. In this case, we are dealing with an affirmative action measure and hence the test of proportionality is a far more appropriate standard for exercising judicial review. It cannot be denied that the reservation of chairperson posts in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and women does restrict the rights of political participation of persons from the unreserved categories to a certain extent. However, we feel that the test of reasonable classification is met in view of the legitimate governmental objective of safeguarding the interests of weaker sections by ensuring their adequate representation as well as empowerment in local self-government institutions. The position has been eloquently explained in the respondents' submissions, wherein it has been stated that "the asymmetries of power require that the chairperson should belong to the disadvantaged community so that the agenda of such panchayats is not hijacked for majoritarian reasons."17
Rules 13(5) and 13-A(3) of the Rules under consideration read as under:
"13. Reservation of Offices of President and Vice-President.-
x x x (5) The offices of President and Vice-
President reserved for women in each category referred in sub-rule (1) shall be allotted by the Government to the Municipal Councils, or as the case may be, Town Panchayats taking into consideration such factors as the Government may deem fit:
Provided that both the offices of President and Vice-President of the Municipal Council, or as the case may be, Town Panchayats shall not be reserved for women.
13-A. Rotation of offices.-
x x x (3) Both the offices of the President and Vice-President of the City Municipal Councils, Town Municipal Councils or Town Panchayats, as the case may be, shall not be allotted in favour of the same category of Scheduled Caste, Scheduled Tribe, Backward Class and Woman."
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12. In the order dated 15/09/2015, passed in the case of T.Venkatesh, on the question of validity of the proviso being considered, this court in paragraphs 6 and 7 has observed as under:
"6. Rule 13 deals with reservation of offices of President and Vice-President of the City Municipal Councils and Town Municipal Councils and Town Panchayats for different categories, which is as per sub-section (2-A) of Section 42 read with Section 353 of the Act. Proviso to sub-rule (5) of Rule 13 states that the offices of President and Vice-President reserved for women in each category referred in sub-rule (1) shall be allotted by the Government to the Municipal Councils or the Town Panchayats as the case may be, taking into consideration such factors as it deems fit. The proviso states that both the offices of the President and Vice- President of the Municipal Council or the Town Panchayat as the case may be shall not be reserved for women. It is based on this proviso that the petitioners have contended that in the 19 instant case, the reservation could not have been made in respect of both the posts, for women. Similarly, sub-rule (3) of Rule 13-A states that both the offices of President and Vice-President of the City Municipal Council, Town Municipal Council or the Town Panchayat as the case may be, shall not be allotted in favour of the same category of Scheduled Caste, Scheduled Tribe, Backward Classes or woman. By these provisions, what is implied is that, at a time or simultaneously, the President and the Vice-President of the Municipal Council or Town Panchayat, as the case may be, cannot be reserved for women. Such a bar however, is not applicable when it comes to reservation to be made in the male category. The bar referred to above as against women is in fact, contrary to clause (3) of Article 15 of the Constitution, which enables special provisions to be made for women and also contrary to Articles 14 and 15 of the Constitution.
7. In that view of the matter, proviso to sub- rule (5) of Rule 13 and sub-rule (3) of Rule 13-A insofar as it places a restriction on women are quashed as being violative of Articles 14 and 15 20 of the Constitution by placing reliance on order dated 14/02/2011 referred to above. The relevant portion of which reads as under:
38. The contention raised by the counsel for the petitioners with regard to reservation made for women shall now be considered. In fact, under Clause 3 of Article 15 of the Constitution, a specific provision is made for women and children which is an exception to the rule against discrimination provided under Clauses (1) and (2). Therefore, there can be specific provision in the form of reservation and there can be no limit as to the extent of reservation.
As already noted, the State of Karnataka has advanced the concept of political empowerment for women by making an amendment to Section 123 and also Section 138 of the Act by stating that "not less than 50%" of the total number of members of the Taluk Panchayat in the State from each of the categories reserved for persons belonging to the Scheduled Caste, Scheduled Tribe and Backward Classes and those in the non-reserved category shall be reserved for women. The same principle also applies in respect of reservation of posts of 21 chair persons. Having said so, clause (b) to Rule 5 which states that reservation of women category has to be made on the availability of the categories can no longer be sustained. If at the initial stage of membership of the Taluk Panchayat and at the stage of considering the reservations of the Chairpersons of the Taluk Panchayats there are already available 50% of women candidates in both the reserved and unreserved category, the question of making reservation of seats for women depending upon the availability of candidates would have no meaning since the reservation of seats for women have to be not less than 50%, both in the reserved category and also in the general category or unreserved seats. If the said reservation is maintained in the membership of the Taluk Panchayat, then automatically there would be available 50% of women candidates for the purpose of reserving the seats for the office of the Chairpersons. There cannot be half-hearted policy of reservation of seats for women. Hence, Clause(d) of Rule 5 making reservation of seats for women dependent upon the availability of women candidates is 22 meaningless and hence, Clause(d) of Rule 5 is struck down.
39. Then, proviso to Clause (d) states that the post of Adhyaksha and Upadhyaksha cannot be reserved for women at the same time and proviso to Clause 3 states that the post of Adhyaksha and Upadhyaksha if reserved for a woman in a particular category, it cannot be once again reserved for a woman belonging to another category consecutively. These two provisions in my considered view are also against the principles of political empowerment of women. If the intention of the legislation is that 50% of the seats in Taluk Panchayat must be reserved for women candidates and 50% of the post for Chairpersons must also be reserved for women candidates, then, the restrictions that two women cannot hold the post of Chairpersons in a Taluk Panchayat simultaneously and two women cannot hold the post of Chairperson consecutively irrespective of the category to which they belong are unreasonable restrictions and antithetical to empowerment of women in a democracy and particularly in the context of local self- 23
Government. Therefore, these two provisions proviso to Clause (d) and (e) which restrict the mandate reservations that is provided with regard to for women, the post of Chairpersons are struck down as being unreasonable arbitrary and thus contrary to Articles 14 and 15 of the Constitution of India. Hence, the contention of the counsel for the petitioners that the reservations for the posts of women is not in accordance with law is answered as aforesaid." In that case also, a similar challenge was made, whereby the reservation made in respect of the Offices of President and Vice-President of Town Panchayat, Kudligi, was challenged when notification dated 23/08/2013 was issued reserving both the aforesaid offices for women simultaneously. Though there was no specific challenge made to proviso to Rule 13(5) or Rule 13-A (3) raised by the respondents in that matter, this court by following the decision dated 14/02/2011 struck down the proviso to Rule 13(5) and consequently, dismissed the writ petitions. 24
The rationale for the above could also be traced to the following Articles of the International Convention On The Elimination Of All Forms of Discrimination against Women, 1979 (CEDAW). The relevant Articles read as under:
"Article 1:
For the purposes of the present Convention, the term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social cultural, civil or any other field.
Article 2:
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end undertake:25
x x x (d) To refrain from engaging in any act or
practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
x x x (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women.
x x x Article 7:
States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:
(a) To vote in all elections and public
referenda and to be eligible for
election to all publicly elected bodies;
(b) To participate in the formulation of
government policy and the
implementation thereof and to hold 26 public office and perform all public functions at all levels of government;
(c) To participate in non-governmental
organisations and associations
concerned with the public and political life of the country.
13. At this stage, it is necessary to note that during the pendency of these appeals, the Under Secretary to the Government of Karnataka, Department of Urban Development has filed an affidavit dated 09/02/2017 to the effect that although this court has struck down the proviso to Rule 13(5) and Rule 13-A(5), steps would be taken to delete the said provision from the statute book, as they are contrary to Articles 14 and 15 of the Constitution and further there have been no challenge made to the orders of this court referred to above. 27
14. In the circumstances, we find no legal impediment to place reliance on the aforesaid orders and apply the same in the instant case also. Having regard to the proviso to Rule 13(5) and Rule 13-A (3) of the Rules being struck down by this court, the State Government was justified in reserving the post of the President as well as Vice-President of the Town Municipal Council, Jewargi, for women candidates and that of the post of President for BCB-Woman. Therefore, the impugned notification dated 24/02/2016 at Annexure-C would not call for any interference in these appeals.
15. In view of the above, the order of the learned Single Judge is set aside. Pursuant to the notification dated 24/02/2016 the State and other authorities are now directed to continue the process of holding election to the post of President of Town Municipal Council, Jewargi by taking necessary steps 28 in accordance with law from the stage election was stayed by this court.
The writ appeals are allowed in the aforesaid terms.
No costs.
Sd/-
JUDGE Sd/-
JUDGE Sdu