Karnataka High Court
Sri. Pranesh M K vs Mr. Venkatesh K on 20 April, 2023
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL 2023
PRESENT
THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT APPEAL NO.1247 OF 2022 (LB-ELE)
C/W
W.A.NO.1250 OF 2022, W.A.NO.1251 OF 2022,
W.A.NO.1252 OF 2022, W.A.NO.1256 OF 2022
IN W.A.NO.1247 OF 2022
BETWEEN:
1. SRI K R PRAVEEN
S/O SRI RAMEGOWDA
AGED 42 YEARS
R/AT KOPPA POST
KOPPA TALUK
CHIKKAMAGALUR DISTRICT 577126
2. SRI Y K RAMESH
S/O YELLAPPA
AGED 39 YEARS
R/AT MELENAPETE
KOPPA POST
KOPPA TALUK
CHIKKAMAGALURU 577126
3. SMT SUJATHA
W/O PRAKASH
2
AGED 38 YEARS
R/AT KOPPA POST
KOPPA TALUK
CHIKKAMAGALURU 577126
4. SRI K N CHANDRASHEKAR
S/O K NARAYANA
AGED 44 YEARS
R/AT WADD NO 5
NERHU ROAD
MUDIGERE
CHIKKAMAGALURU 577132
5. SRI H P MANJUNATH
S/O H K PUTTACHARI
AGED 43 YEARS
RA/T WARD NO 4
SHUBASH ROAD
MUDIGERE
CHIKKAMAGALURU 577132
6. SRI H J SANDARASH
S/O H M JAYAKUMAR
AGED 47 YEARS
R/AT WARD NO 1
MEGALAPETE, MUDIGERE
CHIKKAMAGALURU
7. SRI ARUN
S/O RAGHU
AGED 32 YEARS
R/A NO OLD POST OFFICE ROAD
WARD NO 5, N R PURA POST
NARASHIMHARAJAPURA TALUK
CHIKKAMAGALURU DISTRICT 577134
8. SRI CHANDRAPPA
S/O GANGAPPA
R/A N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALURU DISTRICT 577134
3
9. SRI M P SUNNY
S/O M I POULUS
AGED 44 YEARS
R/T MARIGUDI
WARD NO 7, N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALURU DISTRICT 577134
10 . SRI M S MANJUNATH PANDITH
S/O LATE NARAYANA PANDITH
AGED 43 YEARS
R/AT KEREDHANDE
SHRINGERI POST
SHRINGERI TALUK
CHIKKAMAGALURU 577134
11 . SRI R. N. VIJENDRA
S/O LATE NARAYANA
AGED 46 YEARS
R/AT KERE ANJANEYA SWAMY BEEDHI
SHRINGERI POST
SHRINGERI TALUK
CHIKKAMAGALURU DISTRICT - 577139
12 . SRI H S SUBRAMANYA
S/O LATE H SEETHARAMAIAH
AGED 38 YEARS
R/AT MALLIKARJUNA BEEDI
SHRINGERI POST
SHRINGERI TALUK
CHIKKAMAGALURU 577139
13 . SRI PRANESH M K
S/O M U KALEGOWDA
AGED ABOUT 61 YEARS
R/AT SVT ROAD
(CONVENT) KOPPA TALUK
CHIKKAMAGALURU 577126
...APPELLANTS
(BY SRI. ASHOK HARANAHALLI, SR. ADVOCATE FOR
SRI. R. HEMANTH RAJ, ADVOCATE)
4
AND:
1. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIDHANA SOUDHA
AMBEDAKR VEEDHI
REP. BY ITS SECRETARY
BENGALURU 560001
2. ELECTION COMMISSION OF INDIA
NO 1, NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI 110001
REP. BY ITS CHIEF COMMISSIONER
3. THE DEPUTY COMMISSIONER
CHIKKAMAGALURU DISTRICT
AND THE ELECTORAL REGISTRATION OFFICER
AUTHORITIES CONSTITUENCY
CHIKKAMAGALURU LOCAL
CHIKKAMAGALURU DISTRICT CONSTITUENCY
CHIKKAMAGALURU 577117
4. SRI SOMASHEKARAPPA R
S/O LATE SRI RAMANNA K S
AGED ABOUT 40 YEARS
R/AT KAMSAGARA
SARASWATHIPURA POST
KADUR TALUK, CHIKKAMAGALURU 577548
5. SRI GURUMURTHY K R
S/O LATE RAJEGOWDA
AGED ABOUT 27 YEARS
R/AT KURICHIKKANAHALLI
HIREGOWJA POST
HIRIGOWJA, CHIKKAMAGALURU-S577168
....RESPONDENTS
(BY SRI. S. RAJASHEKAR, AGA FOR R1
SRI. S.R. DODDAWAD, ADVOCTE FOR R2 AND R3
SRI. ROHAN HOSMATH, ADVOCATE FOR C/RS4 & R5)
5
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER DATED 03.11.2022 IN WP No-
1876/2022 AND DISMISS THE WP AS PRAYED FOR IN THE
INTEREST OF JUSTICE AND EQUITY.
IN W.A.NO.1250 OF 2022
BETWEEN:
SRI. PRANESH M K
S/O M U KALEGOWDA
AGED ABOUT 61 YEARS
R/AT SVT ROAD (CONVENT) KOPPA TALUK
CHIKKAMAGALURU-577126
...APPELLANT
(BY SRI. VIVEK S. REDDY K.N., SR. ADVOCATE FOR
SRI. K.N. SUBBA REDDY, ADVOCATE)
AND:
1. MR. VENKATESH K
S/O MR. K T KESHAVMURTHY
AGED ABOUT 61 YEARS
RESIDING AT WARD NO.1
MEGALAPETE, MUDIGERE
CHIKKAMAGALURU-577132
2. MR. PRASHANTH L N
S/O MR. LAKSHMAN SHETTY
AGED ABOUT 42 YEARS,
RESIDING AT WARD NO.3
BAVIHATTI ROAD, NARASIMHARAJAPURA
CHIKKAMAGALURU-577132
3. MR. RAFIK AHAMAD
S/O MR. ABDUL KHADAR
AGED ABOUT 42 YEARS,
RESIDING AT BHARATHI STREET
SRINGERI-577139
6
4. MR. RASHEED
S/O MR. AMEER
AGED ABOUT 44 YEARS
R/AT SUBHASH STREET KOPPA
CHIKKAMAGALURU
BENGALURU-560037
5. THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN,
ASHOKA RAOD,
NEW DELHI-110001
REPRESENTED BY ITS PRINCIPAL SECRETARY
6. ELECTORAL REGISTRATION OFFICER
NO.12, CHIKKAMAGALURU LOCAL AUTHORITIES
ELECTION, CHIKKAMAGALURU
ALSO THE DEPUTY COMMISSIONER OF
CHIKKAMAGALURU DISTRICT
7. MR H J SANDARSH
S/O H M JAYAKUMAR
AGED MAJOR
R/AT WARD NO.1, MUGULPETE, MUDIGERE
CHIKKAMAGALURU DISTRICT-577132
8. MR K N CHANDRASHEKAR
S/O K NARAYAN
AGED MAJOR
R/AT NEHRU ROAD, MUDIGERE
CHIKKAMAGALURU DISTRICT-577132
9. MR H P MANJUNATHA
S/O H K PUTTACHARI
AGED MAJOR
R/AT WARD NO.5, SUBHASH ROAD MUDIGERE
CHIKKAMAGALURU DISTRICT-577132
10 . MR K Y RAMESH
S/O YALLAPPA
AGED MAJOR
R/AT MELINAPETE, KOPPA POST
7
KOPPA TALUK
CHIKKAMAGALURU DISTRICT-577132
11 . MR K R PRAVEEN
S/O RAMEGOWDA
AGED MAJOR
R/AT KOPPA POST, KOPPA TALUK
CHIKKAMAGALURU DISTRICT-577132
12 . SMT. SUJATHA
W/O PRAKASH
AGED MAJOR
R/AT KOPPA POST, KOPPA TALUK
CHIKKAMAGALUR DISTRICT - 577 132
13 . M P SUNNY
S/O M I PAULOSE
AGED MAJOR
R/AT MARIGUDI
WARD NO.7, N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALUR DISTRICT - 577 132
14 . ARUN
S/O RAGHU
AGED MAJOR
R/AT OLD POST OFFICE ROAD
WARD NO.5, N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALURU DISTRICT - 577 132
15 . CHANDRAPPA
S/O GANGAPPA
AGED MAJOR
R/AT N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALUR DISTRICT - 577 132
16 . H S SUBRAMANYA
S/O LATE H SEETHARAMAIAH
AGED MAJOR
8
R/AT MALLIKARJUNA
BEEDHI SHRINGERI POST
SHRINGERI TALUK
CHIKKAMAGALUR DISTRICT - 577 132
17 . MR. M S MANJUNATH PANDITH
S/O LATE NARAYAN PANDITH
AGED MAJOR
R/AT KEREDANDE CIRCLE
SRINGERI POST
SRINGERI TALUK
CHIKKAMAGALLURU - 577132
18 . MR. N VIJENDRA
S/O LATE NARAYAN
AGED MAJOR
R/AT KERE ANJANEYA SWAMY ROAD
SRINGERI POST, SRINGERI TALUK
CHIKKAMAGALURU - 577 132
....RESPONDENTS
(BY SRI. RAVIVARMA KUMAR, SR. ADVOCATE FOR
SRI. NISHANTH A.V., ADVOCATE FOR C/R1
SRI. S.R. DODDAWAD, ADVOCATE FOR R5 & R6)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
ALLOW PRESENT WRIT APPEAL AND SET ASIDE THE
IMPUGNED ORDER DATED 03/11/2022 IN W.P.
NO.1824/2022 PASSED BY THE LEARNED SINGLE JUDGE
OF THIS HON'BLE COURT AND THERE BY DISMISS WRIT
PETITION FILED BY THE RESPONDENT NOS.1 TO 4
HEREIN AS THE SAME IS DEVOID OF MERITS.
IN W.A.NO.1251 OF 2022
BETWEEN:
PRANESH M K
S/O M U KALEGOWDA
9
AGED ABOUT 61 YEARS
R/AT SVT ROAD
CONVENT KOPPA TALUK
CHIKKAMAGALURU - 577 126
...APPELLANT
(BY SRI. VIVEK SUBBA REDDY, SR. ADVOCATE FOR
SRI. K.N. SUBBA REDDY, ADVOCATE)
AND:
1. SMT. A.V GAYATHRI SHANTHEGOWDA
W/O SHANTHEGOWDA
AGED ABOUT 57 YEARS
R/O KAVYA NILAYA
SAGANIPURA ROAD
CHIKKAMAGALURU - 577 101
2. ELECTION COMMISSION OF INDIA
NO.1, NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI 110 001
REP. BY ITS SECRETARY
3. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIDHAN SOUDHA
AMBEDKAR VEEDHI
BENGALURU 560 001
REP. BY ITS SECRETARY
4. CHIKKAMAGALURU DISTRICT
AND THE ELECTORAL REGISTRATION OFFICER
THE DEPUTY COMMISSIONER
CHIKKAMAGALURU DISTRICT
CHIKKAMAGALURU LOCAL AUTHORITIES
CONSTITUENCY
CHIKKAMAGALURU - 577 117
5. K R PRAVEEN
S/O SRI RAMEGOWDA
10
AGED MAJOR
R/AT KOPPA POST, KOPPA TALUK
CHIKKAMAGALUR DISTRICT
6. K Y RAMESH
S/O YELLAPPA
R/AT MELENAPETE
AGED MAJOR, KOPPA POST
KOPPA TALUK
CHIKKAMAGALURU DISTRICT
7. SMT. SUJATHA
W/O PRAKASH
AGED MAJOR
R/AT KOPPA POST, KOPPA TALUK
CHIKKAMAGALUR DISTRICT - 577 117
8. K N CHANDRASEKAR
S/O K NARAYANA
AGED MAJOR
R/AT WARD NO.5
NEHARU ROAD
MUDIGERE, CHIKKAMAGALUR DIST - 577 177
9. H P MANJUNATH
S/O H K PUTTACHARI
AGED MAJOR
R/AT WARD NO.4
SHUBASH ROAD
MUDIGERE
CHIKKAMAGALURU DIST - 577 177
10 . H J SANDARSH
S/O H M JAYAKUMAR
AGED MAJOR
R/AT WARD NO.1
MEGALAPETE, MUDIGERE
CHIKKAMAGALUR DIST - 577 177
11 . ARUN
S/O RAGHU
11
AGED MAJOR
R/AT OLD POST OFFICE ROAD
WARD NO.NO.5
N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALURU DIST - 577 117
12 . CHANDRAPPA
S/O GANGAPPA
AGED MAJOR
R/AT N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALURU DIST - 577 117
13 . M P SUNNY
S/O M I PAULOSE
AGED MAJOR
R/AT MARIGUDI, WARD NO.7
N R PURA POST, NARASIMHARAJAPURA TALUK
CHIKKAMAGALUR DISTRICT - 577 117
14 . M S MANJUNATH PANDITH
S/O LATE NARAYANA PANDITH
AGED MAJOR, R/AT KEREDHANDE
SHRINGERI POST AND TALUK
CHIKKAMAGALURU DIST - 577 117
15 . N VIJENDRA
S/O LATE NARAYANA
AGED MAJOR
R/AT KEREANJANEYA SWAMY BEECHI
SHRINGERI POST AND TALUK
CHIKKAMAGALURU DISTRICT - 577 177
16 . H S SUBRAMANYA
S/O LATE H SEETHARAMAIAH
AGED MAJOR
R/AT MALLIKARJUNA
BEEDHI SHRINGERI POST AND TALUK
CHIKKAMAGALURU DIST - 577 117
....RESPONDENTS
12
(BY SRI. H. KANTHARAJ, SR. ADVOCATE FOR
SRI. H.K. RAVI, ADVOCATE FOR C/R-1
SRI. S.R. DODDAWAD, ADVOCATE FOR R2 AND R4
SRI. S. RAJASHEKAR, AGA FOR R3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
ALLOW PRESENT WRIT APPEAL AND SET ASIDE THE
IMPUGNED ORDER DATED 03/11/2022 IN WP
NO.1850/2022 PASSED BY THE LEARNED SINGLE JUDGE
OF THIS HON'BLE COURT AND THERE BY DISMISS WRIT
PETITION FILED BY THE RESPONDENT NO.1 HEREIN AS
THE SAME IS DEVOID OF MERITS.
IN W.A.NO.1252 OF 2022
BETWEEN:
1. MR. H J SANDARSH
S/O H M JAYAKUMAR
AGED MAJOR, 34 YEARS
R/AT WARD NO.1, MUGULPETE
MUDIGERE
CHIKKAMAGALURU DISTRICT -577132
2. MR K N CHANDRASHEKAR
S/O K NARAYAN, AGED MAJOR
R/AT WARD NO.5
NEHRU ROAD, MUDIGERE
CHIKKAMAGALURU DISTRICT -577132
3. MR H P MANJUNATHA
S/O H K PUTTACHARI
AGED MAJOR,
R/AT WARD NO.4
SUBHASH ROAD, MUDIGERE
CHIKKAMAGALURU DISTRICT -577132
4. MR. K Y RAMESH
S/O YALLAPPA
AGED MAJOR
13
R/AT MELINAPETE KOPPA POST
KOPPA TALUK
CHIKKAMAGALURU DISTRICT -577126
5. MR. K R PRAVEEN
S/O RAMEGOWDA
AGED MAJOR
R/AT KOPPA POST
KOPPA TALUK,
CHIKKAMAGALURU DISTRICT -577 126
6. MRS SUJATHA
W/O PRAKASH
AGED MAJOR
R/AT KOPPA POST
KOPPA TALUK
CHIKKAMAGALURU DISTRICT -577 126
7. MR M P SANNI
S/O M I POULOS
R/AT MARIGUDI ROAD
AGED MAJOR
WARD NO.7, N R PURA POST
N R PURA TALUK
CHIKKAMAGALURU DISTRICT -577134
8. MR ARUNA
S/O RAGHU
AGED MAJOR
R/AT OLD POST OFFICE ROAD, WARD NO.5
N R PURA POST, N R PURA TALUK
CHIKKAMAGALURU DISTRICT -577134
9. MR CHANDRAPPA
S/O GANGAPPA, AGED MAJOR
R/AT N R PURA POST
N R PURA TALUK
CHIKKAMAGALURU DISTRICT -577134
10 . MR H S SUBRAMANYA
S/O LATE H SEETARAMAIAH
14
AGED MAJOR
R/AT MALLIKARJUNA ROAD
SRINGERI POST
SRINGERI TALUK
CHIKKAMAGALURU DISTRICT -577139
11 . MR M S MANJUNATH PANDITH
S/O LATE NARAYAN PANDITH
AGED MAJOR
R/AT KEREDANDE CIRCLE SRIGNERI POST
SRINGERI TALUK
CHIKKAMAGALURU DISTRICT -577 139
12 . MR N VIJENDRA
S/O LATE NARAYAN
AGED MAJOR
R/AT KERE ANJANEYA SWAMY ROAD
SRINGERI POST, SRINGERI TALUK
CHIKKAMAGALURU DISTRICT -577139
...APPELLANTS
(BY SRI. K.N. PHANINDRA, SR. ADVOCATE FOR
SRI. PULAKESHI A P., ADVOCATE)
AND:
1. THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD, NEW DELHI -110 001
REPRESENTED BY ITS PRINCIPAL SECRETARY
2. ELECTORAL REGISTRATION OFFICER
NO.12 CHIKKAMAGALURU LOCAL AUTHORITIES
ELECTION
CHIKKAMAGALURU ALSO THE
DEPUTY COMMISSIONER OF
CHIKKAMAGALURU DISTRICT -577101
3. PRANESH M K
S/O M U KALEGOWDA
AGED ABOUT 61 YEARS
15
R/AT SVT ROAD CONVENT
KOPPA TALUK
CHIKKAMAGALURU -577 126
4. MR VENKATESH K
S/O MR K T KESHAVAMURTHY
AGED ABOUT 61 YEARS
R/AT WARD NO.1 MEGALAPETE MUDIGERE
CHIKKAMAGALURU -577 132
5. MR PRASHANTH L N
S/O MR LAKSHMAN SHETTY
AGED ABOUT 42 YEARS
R/AT WARD NO.3
BAVIHATTI ROAD
NARASIMHARAJAPURA
CHIKKAMAGALURU -577 134
6. MR RAFIK AHAMAD
S/O MR ABDUL KHADAR
AGED ABOUT 42 YEARS
R/AT BHARATHI STREET
SRINGERI -577 139
7. MR RASHEED
S/O MR AMEER
AGED ABOUT 44 YEARS
R/AT SUBHASH STREET KOPPA
CHIKKAMAGALURU
....RESPONDENTS
(BY SRI. S.R. DODAWAD, ADVOCATE FOR R1 AND R2
PROF. RAVIVARMA KUMAR, SR. ADVOCATE FOR
SRI. NISHANTH A.V. , FOR C/R-4
SRI. H. KANTHARAJ, SR. ADVOCATE FOR
SRI. H.K. RAVI, ADVOCATE FOR C/R-1
SRI. S.R. DODDAWAD, ADVOCATE FOR R2 & R4
SRI. S. RAJASHEKAR, AGA FOR R3)
16
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER DATED 03/11/2022 IN WP
NO.1824/2022 AND DISMISS THE WRIT PETITION AS
PRAYED FOR.
IN W.A.NO.1256 OF 2022
BETWEEN:
1. K R PRAVEEN
S/O SRI RAMEGOWDA
AGED MAJOR
R/AT KOPPA POST, KOPPA TALUK
CHIKKAMAGALURU DISTRICT 577 126
2. K Y RAMESH
S/O YELLAPPA
AGED MAJOR
R/AT MELENAPETE KOPPA POST, KOPPA TALUK
CHIKKAMAGALURU DISTRICT 577 126
3. SMT. SUJATHA
W/O PRAKASH
AGED MAJOR
R/AT KOPPA POST, KOPPA TALUK
CHIKKAMAGALUR DISTRICT 577 126
4. K N CHANDRASEKAR
S/O K NARAYAN
AGED MAJOR
R/AT WARD NO.5
NEHARU ROAD, MUDIGERE
CHIKKAMAGALURU DISTRICT 577 132
5. H P MANJUNATH
S/O H K PUTTACHARI
AGED MAJOR
R/AT WARD NO.4
SHUBASH RAOD, MUDIGERE
CHIKKAMAGALURU DISTRICT 577 132
17
6. H J SANDARSH
S/O H M JAYAKUMAR
AGED MAJOR
R/AT WARD NO.1, MEGALAPETE
MUDIGERE
CHIKKAMAGALURU DISTRICT 577 132
7. ARUN
S/O RAGHU
AGED MAJOR
R/T AT OLD POST OFFICE ROAD
WARD NO.5, N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALURU DISTRICT 577 134
8. CHANDRAPPA
S/O GANGAPPA
AGED MAJOR
R/AT N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALURU DISTRICT 577 134
9. M P SUNNY
S/O M I PAULOSE
AGED MAJOR
R/AT MARIGUDI
WARD NO.7, N R PURA POST
NARASIMHARAJAPURA TALUK
CHIKKAMAGALURU DISTRICT 577 134
10 . M S MANJUNATH PANDITH
S/O LATE NARAYANA PANDITH
AGED MAJOR
R/AT KEREDHANDE
SRINGERI POST, SHRINGERI TALUK
CHIKKAMAGALURU-577139
11 . N VIJENDRA
S/O LATE NARAYANA
AGED MAJOR
R/AT KERE ANJANEYA SWAMY BEEDHI
18
SHRINGERI POST, SHRINGERI TALUK
CHIKKAMAGALURU DISTRICT 577 139
12 . H S SUBRAMANYA
S/O LATE H SEETHARAMAIAHA
AGED MAJOR
R/AT MALLIKARJUNA BEEDHI
SHRINGERI POST, SHRINGERI TALUK
CHIKKAMAGALURU DISTRICT 577 139
...APPELLANTS
(BY SRI. K.N. PHANINDRA, SR. ADVOCATE FOR
SRI. PULAKESHI A P, ADVOCATE)
AND:
1. ELECTION COMMISSION OF INDIA
NO.1, NIRVACHAN SADAN
ASHOKA ROAD,
NEW DELHI 110 001
REP. BY ITS SECRETARY
2. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIDHANA SOUDHA
AMBEDKAR VEEDHI
BENGALURU 560 001
REP. BY ITS SECRETARY
3. THE DEPUTY COMMISSIONER
CHIKKAMAGALURU DISTRICT AND
THE ELECTORAL REGISTRATION OFFICER
AUTHORITIES CONSTITUENCY
CHIKKAMAGALURU LOCAL
CHIKKAMAGALURU DISTRICT CONSTITUENCY
CHIKKAMAGALURU 577 117
4. SMT. A.V. GAYATHRI SHANTHEGOWDA
W/O SHANTHEGOWDA
AGED ABOUT 57 YEARS
R/O KAVYA NILAYA SAGANIPURA ROAD
CHIKKAMAGALURU - 577 101
19
5. PRANESH M K
S/O M U KALEGOWDA
AGED ABOUT 61 YEARS
R/AT SVT ROAD (CONVENT)
KOPPA TALUK
CHIKKAMAGALURU 577 126
....RESPONDENTS
(BY SRI. S.R. DODDAWAD, ADVOCATE FOR R1 & R3
SRI. S. RAJASHEKAR, AGA FOR R2)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER DATED 03/11/2022 IN WP NO.1850/2022
AND DISMISS THE WRIT PETITION AS PRAYED FOR AND
ETC.
THESE APPEALS, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 09.03.2023, COMING ON
FOR PRONOUNCEMENT, THIS DAY, ASHOK S KINAGI J.,
DELIVERED THE FOLLOWING:
JUDGMENT
These intra-court appeals are filed under Section 4 of the Karnataka High Courts Act challenging the common order dated 03.11.2022, passed in W.P.Nos.1850/2022 c/w 1824/2022, 1876/2022 by the learned Single Judge.
2. Brief facts leading rise to filing of these appeals are as under:
20
2.1. Respondents No.1 to 4 in W.A.Nos.
1250/2022 and 1252/2022 are the elected members of (a) Mudigeri Town Panchayat (b) Narasimharajapura Town Panchayat (c) Shringeri Town Panchayat (d) Koppa Town Panchayat, respectively. The biennial election to the Karnataka Legislative Council from 20 local authority constituencies for 25 seats in view of retirement of sitting members on 05.01.2022, were notified on 09.11.2021. The Election Commission of India ('ECI' for short) decided to hold biennial election to the Karnataka Legislative Council in accordance with the following programme:
Events Dates
Issue of Notifications 16th November 2021
(Tuesday)
rd
Last date of making 23 November 2021
nominations (Tuesday)
th
Scrutiny of nominations 24 November 2021
(Wednesday)
th
Last date of withdrawal of 26 November 2021
candidatures (Friday)
th
Date of Poll 10 December 2021
(Friday)
Hours of Poll 08:00 a.m. to 04:00 p.m.
21
Counting of Votes 14th December 2021
(Tuesday)
th
Date before which election 16 December 2021
shall be completed (Thursday)
The Deputy Commissioner, Chikkamagaluru was appointed as a Returning Officer by the ECI for Chikkamagaluru Local Authorities Constituency Election. It is contended that the elected members of 9 municipalities in Chikkamagaluru were eligible to vote. Out of said 9 municipalities, City Municipal Council, Chikkamagaluru did not have elected representatives, therefore, there were no voters in the voters list from the City Municipal Council, Chikkamagaluru. Nominated members of the 9 municipalities were included in the voters list in No.12, Chikkamagaluru Local Authorities Constituency in view of mandate of proviso to Article 243R(2) of the Constitution of India. It is the case of respondents No.1 to 4 that nominated members cannot be included in the voters list, as the same would be contrary to Section 7 of the Karnataka 22 Municipal Corporation Act, 1976 (for short 'the Act of 1976'), Section 11 and Section 352(1)(b) of the Karnataka Municipalities Act, 1964 (for short 'the Act of 1964'). It is contended that the nominated members from 4 municipalities were not included in the final voters list. However, nominated members from Town Panchayat Mudigeri, Town Panchayat, Narasimharajapura Town Panchayat Shringeri and Town Panchayat Koppa were included in the final voters list, contrary to law. Respondents No.1 to 4 filed a writ petition in W.P.No.1824/2022 challenging the inclusion of nominated members in the final voters list of the aforesaid Town Panchayats.
2.2. Respondent No.1 in W.A.Nos.1251/2022 and 1256/2022 was the candidate of Chikkamagaluru Local Authority Constituency of biennial election to the Karnataka Legislative Council from Local Authorities Constituency, 2021. It is contended that respondent No.1 was an ex-member of Karnataka 23 Legislative Council having represented the 12 Chikkamagaluru Local Authorities Constituency during the year 2010-15. The Electoral Registration Officer issued notice of election to the Karnataka Legislative Council in 12 Chikkamagaluru Local Authorities Constituency and the calendar of events was published, as referred above in para 2.1. Respondent No.1 contested the election as a candidate of the Indian National Congress party and four others have also contested the election. The appellant was declared as a returned candidate. It is contended that 12 Chikkamagaluru Local Authorities Constituency, 2021 consists of Zilla Panchayat, Taluk Panchayat, City Municipal Council and Town Municipal Council. It is further contended that the Electoral Registration Officer included the names of nominated members in the final electoral list. Respondent No.1 aggrieved by the inclusion of the names of respondents No.5 to 7 in the electoral of Koppa Taluk Panchayat, filed a writ petition in W.P.No.1850/2022. 24
2.3. Respondents No.4 and 5 in W.A.No. 1247/2022 are elected as members of Saraswathipura Gram Panchayat and Hiregowja Gram Panchayat. Both the gram panchayats are situated within Chikkamagaluru District. Their names are entered in the electoral roll of the Chikkamagaluru Local Authorities Constituency and they casted their vote in the election held on 10.12.2021. It is contended in para-11 of the memorandum of writ petition that respondent Nos.4 to 15 therein are nominated members to the Town Panchayats under Section 352(1)(b) of the Act of 1964. The inclusion of nominated members in the electoral roll is contrary to law. Hence, filed writ petition in W.P.No.1876/2022 challenging the inclusion of names of respondents No.4 to 15 therein.
2.4. Election Commission of India and Electoral Registration Officer filed statement of objections in the aforesaid writ petitions taking common defence. 25 It is contended that electoral roll for elections to the Legislative Council of a State in any local authority constituency is prepared as per Section 27(2) of the Representation of People Act, 1950 (for short 'the Act of 1950'), and further contended that the language used in Article 171(3)(a) of the Constitution of India is the members of the municipalities. Similarly, Section 27(2)(a)&(b) of the Act of 1950, mentions "Members". Therefore, for the purpose of election, the Electoral Registration Officer prepared electoral roll containing the members of the local authorities concerned within the constituency. The Electoral Registration Officer cannot confine the electoral roll to only certain category of members, i.e., elected members as claimed by the petitioners in the writ petitions. It is further contended that Article 243R(2)(a)(i) of the Constitution of India does not provide for a bar on voting in such elections by nominated members of the local authorities. It is contended that the said provision cannot be stretched 26 to include within its ambit, bar on the right to vote in the elections to the State Legislative Councils. Article 243R does not deal with the election to the Legislative Council. Had the Parliament intended to exclude the nominated members from the electorate, it would have specifically stated so. It is not the intention of the Parliament to exclude the nominated members from the electorate of local authority constituency. It is contended that the word 'Councilor' and 'Constitution of Municipal Council' under the Act of 1964, indicates that the nominated members are part of composition of the municipalities, though nominated members are not entitled to vote in the meeting of the municipal council/corporation, but they have every right to attend the meeting and participate in the proceedings. It is contended that if nominated members are not entitled to vote, the same does not imply that they cease to be members of the municipal council/corporation. It is contended that the nominated members are the members of the 27 municipal council/corporation. The Electoral Registration Officer has rightly included the names of nominated members in the electoral roll. It is further contended that the draft electoral roll was published on 11.11.2021. None of the political parties filed objections regarding inclusion of nominated members in the draft electoral roll and final roll was published on 23.11.2021. Hence, prayed to dismiss the writ petitions.
2.5. The appellants herein filed statement of objections reiterating the statement of objections filed by the ECI and prayed to dismiss the writ petitions.
2.6. The learned Single Judge after hearing the parties, allowed the writ petitions vide order dated 03.11.2022, and declared the electoral roll of Koppa, Mudigeri, Shringeri, Narasimharajapura Town Panchayats as ab-initio void, unconstitutional and quashed the impugned electoral roll and directed the Electoral Registration Officer to delete their names in 28 the electoral roll. The appellants aggrieved by the common order passed by the learned Single Judge in the aforesaid writ petitions, filed these writ appeals.
3. Heard learned senior counsel Sri. Ashok Haranahalli, Sri. K. N. Phaneendra and Sri. Vivek S. Reddy for the appellants and learned senior counsel Sri. Ravivarma Kumar and Sri. Kantharaja, for contesting respondents/petitioners.
4. Learned senior counsel Sri. Ashok Haranahalli submits that the writ petitions filed by the petitioners therein is not maintainable as the petitioners therein have filed election petitions challenging the inclusion of names of nominated members in the electoral rolls and the said election petitions are pending for consideration. He further submits that the petitioners have got an alternative remedy under Section 24 of the Act of 1950. He further submits that without exhausting the alternative remedy, the petitioners have filed the writ 29 petitions. Hence the writ petitions filed by the petitioners are not maintainable. He submits that Section 22 and 23 of the Act of 1950, applies to the local authorities. He further submits that nominated members have every right to cast their vote. As per Section 62 of the Representation of People Act, 1951 (for short 'the Act of 1951'), every person who is enrolled as a voter is entitled to vote, except who has occurred disqualification under the provision. He further submits that Article 329B of the Constitution of India provides a bar for interference by the Court in electoral matters. He submits that the petitioners under the guise of challenge to the electoral rolls have challenged the election process itself. As such, by applying bar, petitions ought not to have been entertained by the learned Single Judge. He further submits that Article 171 of the Constitution of India provides for composition of legislative council and Article 243R provides for composition of municipalities and further submits that Article 243(2)(a) provides 30 that a person having a special knowledge or experience in the municipal administration is the representative of the municipality. Hence, the appellants are the nominated persons having special knowledge and experience in the municipal administration. Further, he submits that the 'nominated members' fall within the definition of 'councilors' as per Section 2(6) of the Act of 1964. He further submits that Section 11 of the Act of 1964 provides the constitution of municipal councils and sub-section (b) specifies that not more than 5 members nominated by the Government from amongst the residents of the municipal area and who are persons having special knowledge and experience in municipal administration or matters relating to health, town planning or education, or social workers. He further submits that the rider 'not to vote', cannot be stretched. Hence he submits that the reasoning of the learned Single Judge is contrary to law and against the provisions referred above. 31
In order to buttress his argument, he has placed reliance on the following judgments:
Sl.No. Citation / Case No. Parties Name
1. (1997) 11 SCC 111 Madhukar Jetly vs. Union of India & Ors.
2. 1988 SCC Online Kar L. Shivanna vs. State of 228 Karnataka
3. (1984) 2 SCC 404 Pashupati Nath Sukul vs. Nem Chandra Jain & Ors.
Election Commission of India vs. Nem Chandra Jain & Ors.
State of UP vs. Nem Chandra Jain & Ors.
4. W.P.No.4457/2022 Lakshmikanta K. & Ors.
Vs. The State of Karnataka & Ors.
5. (2020) 14 SCC 664 K. Lakshminarayanan vs. Union of India & Anr.
S. Dhanalakshmi vs. Union of India & Ors.
6. (1990) 4 SCC 178 D.B.Raju vs. H.J.kantharaj & Ors.
7. (2000) 1 SCC 432 Raees Ahmad vs. State of UP & Ors.
8. (2000) 8 SCC 46 Shyamdeo PD. Singh vs. Nawal Kishore Yadav
9. (1977) 4 SCC 153 Kunwar Nripendra Bahadur Singh vs. Jai Ram Verma & Ors.
10. (1974) 3 SCC 415 Hari Prasad Mulshankar Trivedi vs. V.B.Raju & Ors.
11. (1988) 1 SCC 277 Election Commission of India vs. Shivaji & Ors.
32
12. (1978) 1 SCC 405 Mohindhr Singh Gill & Anr. vs. Chief Election Commissioner, New Delhi & Ors.
13. (1985) 4 SCC 722 Indrajit Barua & Ors. vs. Election Commission of India & Ors.
14. (2015) 13 SCC 601 Ramesh Dalal vs. Union of India & Ors.
15. (1970) 3 SCC 147 Rampakavi Rayappa Belagali vs. B.D.Jatti & Ors.
16. (2010) 4 SCC 81 Laxmi Kant Bajpai vs. Haji Yaqoob & Ors.
17. (1985) 4 SCC 194 Krishna Ballabh Prasad Singh vs. Sub-Divisional Officer Hilsa-cum-
returning Officer & Ors.
18. (1984) 1 SCC 588 Shivram Anand Shiroor vs. Radhabai Shantram Kowshik Mrs. & Anr.
19. (2002) 7 SCC 273 Union of India & Anr. vs. Hansoli Devi & Ors.
He further submits that the ECI has issued clarification in regard to whether nominated members are entitled to right to vote. Hence on these grounds, he prayed to allow the writ appeals.
5. Learned senior counsel Sri. K. N. Phaneendra appearing for ECI submits that the writ petitions filed by the petitioners are not maintainable as the petitioners have got an alternative remedy. He 33 further submits that the Electoral Registration Officer has rightly included the names of nominated members in the electoral roll. He further submits that the learned Single Judge ought to have relegated the petitioners to file an appeal under Section 24 of the Act of 1951. He further submits that as per Section 355-B of the Act of 1964, the nominated member is called as an additional councilor of municipal council. He further submits that draft voters list was published on 11.11.2021, including the names of nominated members in the Local Authority Constituency Electoral Roll. None of them filed objections to the draft voters list. He further submits that final voters list was published on 23.11.2021, and the date of polling was scheduled on 10.12.2021. He submits that after the declaration of result, the petitioners have filed the writ petitions challenging the voters list. He further submits that if the objections was not filed, they have no right to challenge the voters list under Section 24 of the Act of 1951.
34
In order to buttress his argument, he has placed reliance on the judgment of this Court in the case of L.SHIVANNA VS. STATE OF KARNATAKA reported in ILR 1988 KAR 2121. Hence on these grounds he prays to allow the writ appeals.
6. Learned senior counsel Sri. Vivek Reddy places reliance on the judgment of the Hon'ble Apex Court on the case of PONNUSWAMI VS. RETURNING OFFICER & ORS., reported in AIR 1952 SC 64. He submits that the point which emerged from para-29 in the said judgment is, the right to vote is a creature of statute and he submits that as per Section 27(2)(b) of the Act of 1950, every member has a right to vote and it is created by a statute. He further submits that once the right of vote is given under Section 27, it cannot be taken by adding some words. He submits that such adding of words by implication, as done by the learned Single Judge, is neither necessary nor is acceptable and same would be amounting to rewriting 35 of the provision. He submits that the intention of the law maker was with reference to the entire body and not segregating the body between the elected members and nominated members. He submits that there may be some omission in the provision. The Court should not add the words and it is presumed that omission is considered by the legislature. Further in order to buttress his argument, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of S.NARAYANASWAMY VS. ELECTION COMMISSIONER OF INDIA reported in AIR 1972 SC 2284. He further submits that there is no difference between nominated and elected member. Hence on these grounds he prays to allow the writ appeals.
7. Sri Ravivarma Kumar, learned Senior counsel submits that Article 171 of the Constitution of India provides composition of the Legislative Councils and he submits that out of the total number of members in the Legislative Council of a State, as nearly as may 36 be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify. Further he submits that the words used in Clause (a) of Article 171(3) of the Constitution of India is, 'local authorities'.
7.1. He submits that Section 27 of the Act of 1950 provides preparation of electoral rolls for Assembly constituencies and the words used in Clause
(a) of Sub-Section (2) of Section 27 is 'local authorities' and Clause (b) of Sub-Section (2) of Section 27 provides that every member of each such local authority within a local authorities' constituency shall be entitled to be registered in the electoral roll for that constituency. The word used is 'member'. Only members are included in the electoral roll and other than members no other persons are entitled to be registered in the electoral. He further submits that if there is any change in the membership, then Clause 37
(d) of Sub-Rule 2 of Section 21 provides that the said provision was before 74th amendment to the Constitution Part IXA was added.
7.2. Further, he places reliance on the judgment of the Hon'ble Apex Court in regard to the Constitution (Seventy-Fourth Amendment) Act, 1992, and the object is to remove anomaly and to set vibrant democratic units of self-government and having regard to the ensuring regular conduct of elections; ensuring timely elections; and providing adequate representations.
7.3. He submits that Article 243R of the Constitution of India provides Composition of Municipalities. Article 243R(2)(a)(i) provides for the representation in a Municipality of persons having special knowledge or experience in Municipal administration, etc. He further submits that Section 352 of the Act of 1964, provides for Election to Town Panchayat. He submits that the nominated members 38 are not entitled to right to vote. He further submits that the nominated members are only advisory members. He submits that doctrine of Adult Franchise is not available to nominated members. He further submits that the State Legislature cannot amend the Central Act. Further he places reliance on Articles 325 and 326 of the Constitution of India. He submits that once the Councilors are elected, the process is complete and nominated members cannot be treated as members and nominated members do not possess right to vote.
7.4. The sum and substance of his entire argument is that the nominated members do not possess right to vote and he further submits that the Electoral Registration Officer has committed an error in including the name of the nominated members in the electoral roll.
7.5. He further submits that Section 100 of the Act of 1951, provides the grounds for declaring 39 election to be void and he further submits that the voters list cannot be challenged in the election petition. He further submits that the voters list can be challenged only by way of filing a writ petition and bar is made under Section 100 of the Act of 1951 for challenging the electoral roll.
7.6. In order to buttress his arguments, he has placed reliance on the following judgments:
Sl.No. Citation / Case No. Parties Name 1 AIR 1984 SC 1911 INDERJIT BARUA VS.
ELECTION COMMISSIONER OF INDIA 2 (1974)3 SCC 415 HARI PRASAD MULSHANKER TRIVEDI VS.
V.B. RAJU
3 1990 SCC ONLINE KAR J.ROBERT VS. RAM
184: ILR 1990 KAR JETHMALANI
1907
4 (1986) 4 SCC 78 : BHAGWATI PRASAD DIXIT
AIR 1986 SC 1534 VS. RAJEEV GANDHI
5 1989 SCC ONLINE KAR C. KANNAN VS.
30 : ILR 1989 KAR RETURNING OFFICER 1081 6 (2004) 5 SCC 409 RAMESH MEHTA VS.
SANWAL CHAND SINGHVI 7 2003 SCC ONLINE KAR SAVITRI VS. STATE OF 640 : ILR 2003 KAR KARNATAKA 4653 40 8 2015 SCC ONLINE KAR PRAMILA VS. STATE OF 8675 : ILR 2015 KAR KARNATAKA 5872 9 (1982) 1 SCC 691 JYOTI BASU VS. DEBI GHOSAL 10 (2006) 7 SCC 1 KULDIP NAYAR VS. UNION OF INDIA 11 (2000) 8 SC 46 SHYAMDEO PD. SINGH VS.
NAWAL KISHORE YADAV 12 (2007) 8 SCC 338 DHAMPUR SUGAR MILLS LTD. VS. STATE OF U.P. 13 (1985) 3 SCC 267 : RAM & SHYAM CO. VS.
AIR 1985 SC 1147 STATE OF HARYANA 14 (2020) 2 SCC 442 BALKRISHNA RAM VS.
UNION OF INDIA AND ANOTHER 15 (2020) 13 SCC 285 MAHARASHTRA CHESS ASSOCIATION VS. UNION OF INDIA AND OTHERS 16 AIR 1925 SC 64 N.P.PONNUSWAMI VS. THE RETURNING OFFICER & OTHERS 17 (2016) 2 SCC 445 RAJBALA & OTHERS VS.
STATE OF HARYANA & OTHERS 18 (1977) 4 SCC 153 KUNWAR NRIPENDRA BAHADUR SINGH VS. JAI RAM VERMA & OTHERS 19 SMT. CHANDUBI & OTHERS VS. THE DEPUTY COMMISSIONER & OTHERS, ORDER DATED 10/12/1997, PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA, BENGALURU 20 (2023) SCC ONLINE GODREJ SARA LEE VS.
95 EXCISE AND TAXATION
OFFICER CUM ASSESSING
AUTHORIYT & OTHERS
41
21 2022(3) KAR.L.J. 561 LAKSHMIKANTA.K &
(DB OTHERS VS. STATE OF
KARNATAKA & OTHERS
7.7. He submits that the order passed by the learned Single Judge is just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the writ appeal.
8. Sri H. Kantharaj, learned Senior counsel reiterates the arguments of Sri Ravivarma Kumar, learned Senior counsel and also places reliance on the judgment of the Hon'ble Apex Court in the case of L.SHIVANNA VS. STATE OF KARNATAKA reported in ILR 1988 KAR 2121 and he further submits that there is no bar in filing a writ petition even if there an alternative remedy is provided. He further places reliance on the order passed by the Co-ordinate Bench of this Court in W.P.No.4457/2022, wherein the Co-ordinate Bench held that the nominated members 42 have no right to vote. Hence, on these grounds, he prays to dismiss the writ appeal.
9. Perused the records and considered the submissions of the learned counsel for the parties.
10. The points that would arise for consideration are:
1) Whether the writ petition filed by the petitioners is maintainable even though an alternative remedy is available?
2) Whether the nominated members have right to vote?
3) What order?
11. Point No.1: In order to consider the point, it is necessary to consider Section 22 of the Act of 1950, which reads thus:
"22. Correction of entries in electoral rolls. --If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he 43 thinks fit, that any entry in the electoral roll of the constituency--
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or
(c) should be detected on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special direction, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry after proper verification of facts in such manner as may be prescribed:
Provided that before taking any action on any ground under clause (a) or clause (b) or any action under clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not 44 entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him after proper verification of facts in such manner as may be prescribed."
11.1. Section 21 of the Act, 1950 provides the electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act.
11.2. Section 22 of the Act, 1950 deals with correction of entries in electoral rolls-If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency is erroneous or defective or etc. As authority to correct the entries in 45 the electoral roll. Section 23 of the Act, 1950 provides inclusion of names in electoral rolls, wherein any person whose name is not included in the electoral roll of a constituency may apply to the electoral registration officer for the inclusion of his name in that roll.
11.3. Section 24 of the Act, 1950 provides filing an appeal to the district magistrate or additional district magistrate from any order of the Electoral Registration Officer under Section 22 or Section 23.
12. Further, Rule 27 of the Registration of Electors Rules, 1960 (for short 'the Rules of 1960) provides that every appeal under clause (a) of section 24 of the Act shall be in the form of a memorandum signed by the appellant. Rule 23 of the Rules of 1960 provides for appeals from orders deciding claims and objections.
46
13. From the perusal of Section 24 of the Act of 1950, it is clear that an appeal shall lie against an order of Electoral Registration Officer under Section 22 or Section 23 to the District Magistrate or Additional District Magistrate or Executive Magistrate, etc.
14. Admittedly, in the present case, the District Magistrate is the Electoral Registration Officer, who as prepared the electoral roll and he himself being an appellate Authority, the appeal would not lie before the person who was prepared the electoral roll. Further, the issue involved in the present case is, whether the nominated member has right to cast his vote. The controversy involved in this writ appeal is purely a legal one and does not involve disputed question of facts, but only a question of law. If the controversy is purely a legal one, it should be decided by the High Court under Article 226 of the Constitution of India, instead of dismissing the writ 47 petition on the ground of an alternative remedy being available.
15. The Hon'ble Apex Court in the case of GODREJ SARA LEE LTD., VS. THE EXCISE AND TAXATION OFFICER-CUM-ASSESSING AUTHORITY AND OTHERS, wherein the Hon'ble Apex Court held in para No.4, as under:
"4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself.48
Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ 49 petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to 50 "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability"
is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper."
16. The Hon'ble Apex Court in the case of DHAMPUR SUGAR MILLS LTD., VS. STATE OF U.P. reported in (2007)8 SCC 338 wherein the Hon'ble 51 Apex Court held that "As an alternative remedy is available to the writ petitioner, a finding has been recorded by the High Court in favour of the petitioner and the same has not been challenged by the State before us. Even otherwise, from the record it is clear that the decision has been taken by the Government. Obviously in such cases, remedy of appeal cannot be termed as an "alternative or equally efficacious". Once the policy decision has been taken by the Government, filing of appeal is virtually from Caesar to Caesar's wife, an empty formality or futile attempt. The High Court was, therefore, right in overruling the preliminary objection raised by the respondents". Admittedly, in the instant case, the electoral roll was prepared by the District Magistrate who being electoral registration officer and also an appellate Authority even if an appeal is preferred before the District Magistrate. It will be an empty formality or futile attempt. Hence, the writ petition filed by the petitioner is maintainable. As observed above the 52 controversy is purely legal one and it does not involve the disputed question of fact, but only question of law. Hence, the writ petitions filed by the petitioners are maintainable. In view of the above discussion point No.1 is answered in affirmative.
17. Point No.2: In order to consider point No.2, it is necessary to consider Article 243R of the Constitution of India which reads as under:
243R. Composition of Municipalities-(1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide-
(a) for the representation in a
Municipality of-
53
(i) persons having special
knowledge or experience in
Municipal administration;
(ii) the members of the House of
the People and the members of the
Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;
(iii) the members of the Council of States and the members of the Legislative Council of the State registered electors within tile Municipal area;
(iv) the Chairpersons of the Committees constituted under clause ( 5 ) of article 243S:
Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;
(b) the manner of election of the Chairperson of a Municipality.
(Emphasis Supplied) 17.1. Article 243R(2)(a) of the Constitution of India mandate that the nominated members shall not have right to vote in the meeting of the municipality. 54
17.2. Further Section 2 (6) of the Act of 1964, reads thus:
2.Definitions.-- In this Act, unless the context otherwise requires,--
(1) xxx (2) xxx (3) xxx (4) xxx (5) xxx (6) "Councillor" means any person who is legally a member of a municipal council or Town Panchayat.
17.3. Section 11 of the Act, 1964 provides Constitution of Municipal Councils, reads thus:
11. Constitution of municipal councils.--(1) The municipal council shall consist of,--
(a) such number of directly elected councillors specified in column (3) of the table below in respect of the municipal areas specified in the corresponding entries in column (2) thereof, namely:--55
Sl. Population of the Number of No. municipal area Councillors (1) (2) (3) For a municipal area with a population of not less than 1. 23 20,000 but less than 40,000 For a municipal area with a population of not less than 2. 27 40,000 but less than 50,000 For a municipal area with a population of not less than 3. 31 50,000 but less than one lakh For a municipal area with a population of not less than 4. 35 one lakh but less than three lakhs
(b) not more than five persons nominated by the Government from amongst the residents of the municipal area and who are,--
(i) persons having special knowledge and experience in municipal administration or matters relating to health, town planning or education, or
(ii) social workers.
(c) the members of the House of the People and the members of the State Legislative Assembly, representing a part or whole of the municipal area:
(d) the members of the Council of States and members of the State Legislative Council 56 registered as electors within the municipal area:
Provided that the persons referred to in clause (b) shall not have the right to vote in the meetings of the municipal council. (2) Seats shall be reserved in a municipal council,--
(a) for the Scheduled Castes; and
(b) for the Scheduled Tribes;
and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in the municipal council as the population of the Scheduled Castes in the municipal area or of the Scheduled Tribes in the municipal area bears to the total population of the municipal area. Provided that atleast one seat each shall be reserved in a municipal council for the persons belonging to the Scheduled Castes and the Scheduled Tribes:
Provided further that, if no person belonging to the Scheduled Castes is available the seat reserved for the category shall also be filled 57 by the persons belonging to the Scheduled tribes and vice versa.
(3) Such number of seats which shall, as nearly as may be, one-third of the total number of seats to be filled by direct election in a municipal council, shall be reserved for the persons belonging to the Backward Classes.
Provided that out of the seats reserved under this sub-section eighty per cent of the total number of such seats shall be reserved for the persons falling under category "A" and the remaining twenty per cent of the seats shall be reserved for the persons falling under category "B":
Provided further that if no person falling under category "A" is available, the seats reserved for that category shall also be filled by the persons falling under the category "B" and vice versa.
Provided also that the number of seats so reserved for the backward classes under this sub-section shall be so determined that the 58 total number of seats reserved for the scheduled castes and the scheduled tribes under sub-section (2) and the backward classes under this sub-section shall not exceed fifty per cent of the total number of seats in the Municipal Council.
(4) Not less than one-third of the seats reserved for each category of persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes and those of the non-reserved seats to be filled by direct election in a municipal council shall be reserved for women.
Provided that the seats reserved in sub- sections (2), (3) and (4) shall be allotted by rotation to different wards in a municipal area.
(5) The councillors referred to in clause (a) of sub-section (1) shall be elected in the manner provided in this Act.
(6) Nothing contained in sub-sections (2), (3) and (4) shall be deemed to prevent the members of the Scheduled Castes, Schedule 59 Tribes, Backward Classes or Women from standing for election to the non- reserved seats."
17.4. Section 11(1) of the Act, 1964 is in consonance with Article 243R (2)(a) of the Constitution of India. Article 243R (2)(a) of the Constitution of India provides for constitution of municipal councils. Article 243R(1) provides the council shall have elected members whereas Article 243R(2) provides that the members can be nominated to the council and proviso to Article 243R(2)(a) of the Constitution of India mandate that the nominating members of the council shall have no right to vote in the meetings of the council. When the statute prevents from voting in the meetings of the council, the nominated members have no right to vote in the legislative council.
17.5. Section 11 of the Act of 1964 provides for constitution of municipal councils. Section 11(1)(a) of the Act, 1964 provides that the Councilors shall have 60 elected member whereas Section 11(1)(b) of the Act of 1964 provides that not more than five persons nominated by the Government from against the residents of the municipal area. Proviso to Section 11(1)(b) of the Act of 1964 provides that the nominated members shall not have the right to vote in the meetings of the Municipal council.
18. In an identical case, the Three Bench of Supreme Court in the case of SHELLY OBEROI & ANR. VS. OFFICE OF LIEUTENANT GOVERNOR OF DELHI & ORS. reported in 2023 LIVELAW (SC) 119, held that right to vote is not a fundamental right, but it is a constitutional right. The Hon'ble Apex Court further held that elected members of the Councilors held that the Constitution has imposed a restriction in terms of which nominated members who are brought in on account of their special knowledge or experience in Municipal administration do not have the right to vote. The same restriction finds statutory recognition 61 in Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, and at para Nos.7 and 8, the Hon'ble Apex Court has held as under:
"7. Clause (1) of Article 243R stipulates that all seats in the Municipality shall be filled in by direct election held from the territorial constituencies in the Municipal area, for which the Municipal area is divided into wards. An exception, however, is stipulated in clause (2), in terms of which the legislature of a State may, by law, provide for the representation in a Municipality of persons fulfilling the descriptions set out in clauses (i), (ii), (iii) and (iv). Article 243R(2)(a)(i) provides that the legislature of a State may, by law, provide for the representation in a Municipality of persons having special knowledge or experience in Municipal administration. However, the proviso to clause (2) clearly specifies that the persons who are referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality. The legislature of the State may also provide for the manner of election of the Chairperson of the Municipality.62
8. Section 3(3) of the Act is a law as contemplated by Article 243R. In terms of clause (2) of Article 243R, Section 3(3)(b) provides for the representation in the Municipality of persons who have special knowledge or experience in Municipal administration. These persons are nominated by the Administrator. However, in terms of the proviso to Article 243R(2), a similar restriction is introduced in the proviso to Section 3(3)(b)(i) of the Act, by which the nominated members do not have a right to vote in the meetings of the Municipal Corporation."
19. In an identical case, the Co-ordinate Bench of this Court in the case of SRI. LAKSHMIKANTA K. AND OTHERS VS. THE STATE OF KARNATAKA AND OTHERS in W.P.No. 4457/2022 disposed of on 18.04.2022 and also placing reliance on the judgment of the Hon'ble Apex Court in the case of PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER VS. UNION OF INDIA AND ANOTHER reported in (2003)4 SCC 399; STATE OF UP VS. KARTAR SINGH reported in AIR 1964 SC 1135; 63 JAILA SINGH VS. STATE OF RAJASTHAN, reported in AIR 74 SC 1436; and STATE OF HARYANA VS. STATE OF PUNJAB reported in 2004(12) SCC 673 held that nominated and elected members cannot be treated as belonging to one class. Further, the fundamental difference is that the elected members of the Council are chosen by popular vote and carry with them the mandate of the people, whereas, nominated members of the Council are appointed as Councilors.
20. Further, by placing reliance on the judgment of the Hon'ble Apex Court in the case of RAMESH MEHTA VS. SANWAL CHAND SINGHVI reported in (2004) 5 SCC 409 held that there is a distinction between the nominated members and elected members. While dealing with the scope and ambit of Article 243R of the Constitution of India, the Hon'ble Apex Court held that Constitution itself makes a distinction between the elected members and the nominated members, who play essentially an advisory 64 role. The elected members of the councils are chosen by popular vote and carry with them the mandate of the people, whereas, nominated members of the Council are appointed as Councilors. The elected member and nominated members cannot be said to be belonging to the same class and there is no pleading that differentiation between elected and nominated members is either unreasonable or is arbitrary or that it does not rest on any rational basis. Thus, the nominated members are not entitled to right to vote as the nominated members stand on a different footing than the elected members.
21. In the case of Ramesh Mehta (Supra) at paragraph Nos.11, 22 and 25 the Hon'ble Apex Court has held under:
"11. In the present case, on facts, we are concerned with post-1994 position. Article 243-R brought about a drastic change in the matter of composition of Municipalities. It lays down guidelines with regard to the constitution, composition, election and rights of the members of 65 a Municipality. Under the said Act, members of a Municipality are persons chosen by direct election by the residents of a municipal area (ward). Article 243-R(2)(a)(i) allows the legislature of a State to appoint any person as a member of the Board who has special knowledge in the field of municipal administration, however, the proviso appended to the said Article precludes persons nominated under sub-clause (i) from having a right to vote in the meetings of the Municipality. The Constitution, therefore, makes a distinction between elected members and nominated members who play essentially an advisory role. Pursuant to the 74th Constitutional amendment of 1994, sections 9, 65 and 72 of the Act were amended. Prior to the amendment the co-opted members were at par with the elected members, however, after 1994 only elected members and members of the Legislative Assembly have a right to vote under section 9(1) of the Act. Under sub-section (2) of section 65, as amended, the Chairman has to be elected by "elected members of the board". This change is very important. Prior to 1994, the Chairman was to be elected by the "members of the board", which is the phrase used in the unamended section 65(2), as the co-opted members had a right to vote. However, in 1994, section 65(2) of the Act was amended and the 66 expression "members of the board" in the old section is substituted by the expression "elected members of the board". In fact, the expression "whole number of members" earlier appearing in sections 65 and 72 of the Act have been deleted because in section 65(2) it is expressly provided that the Chairman shall be elected only by elected members of the board from amongst themselves. Therefore, the scheme of post-1994 Act is that the Chairman/Vice-Chairman shall be elected by the elected members of the Boards and their office shall stand vacated on passing of no-confidence motion by the elected members of the Board. The position which, therefore, emerges is that both before and after 1994, the no-confidence motion had to be voted upon by members who were entitled to vote. As stated above, Section 3 of the Act begins with the words "unless the context otherwise requires". Section 3(36) defines the expression "whole number"/"total number" to mean total number of members holding the office at the given time. The said expression "whole number of members" finds place in rule 3(5), (8) and (9). Hence, we have to read rule 3(5), (8) and (9) in the context of the provisions of the said Act. As stated above, the basic scheme of the Act prior to 1994 and post-1994 has remained unchanged. In both cases, the legislative intent has been that the 67 office of the Chairman/Vice-Chairman shall stand vacated on passing of no-confidence motion by the members of the Board who are entitled to vote. Hence, in our view, the expression "whole number"
or "total number" connotes the "total number of elected members.
22. A right to contest election although arises under a statute but having regard to the Constitution (Seventy-fourth) Amendment Act, the interpretation thereof must be made keeping in view the constitutional scheme. Democracy at the grass-root level was sought to be introduced by reason of the said amendment in the Constitution. Once the concept of a grass-root democracy is accepted, a pragmatic and purposive meaning to the provisions of the Act must be assigned.
25. It is accepted that the Rules have not been altered despite the fact that amendments have been carried out in the Municipalities Act in the year 1994. All members who were not elected members under the unamended provisions were treated as elected members. Their rights were at par with them. The very fact that the Constitution made a difference between an elected member and nominated member in the matter of election and removal of a Chairman is suggestive of the fact that now a new interpretation is called for. 68 Nominated members are persons with special knowledge in the subject. They are nominated so that they may render their advices properly to the members of the Board which would enable it to run the municipal affairs efficiently. They remain as member of the Board irrespective of the fact that as to who is the person occupying the post or his political affinity. He is not concerned with election. He does not take part in it. A fortiorari he has also not been assigned any role to play as regard removal of the Chairman or Vice-Chairman."
22. Further the Co-ordinate Bench of this Court in the case of SMT. SAVITRI VS THE STATE OF KARNATAKA reported in ILR 2003 KAR 4653 held in para-16 that there is no merit in the contentions of the learned counsel for the appellant that non- issuance of notice to MP and MLA and their absence in the meeting has vitiated the proceedings. It is also the contention of the learned counsel that the term "Councilors" has been defined under Section 2(6) of Act of 1964 as any person who is legally a member of the Municipal Council or Town Panchayat. In view of 69 the decision of the Division Bench of this Court in CHANDUBI'S case which still holds the field, it is clear that for the purpose of Section 42(9) of the Act of 1964, in order to quantify the total number of Councilors, it is only the Councilors who are eligible and entitled for voting whose number has to be considered and the term 'councilor' referred to in Section 2(6) would only mean "legally elected member and not otherwise".
23. From the perusal of the aforesaid judgment it is clear that only elected members are to be considered as a councilor as per Section 2(6) of the Act of 1964 and not the nominated members.
24. Further, the statement of objects and reasons appended to the Constitution (Seventy- Fourth Amendment) Act, 1992 is in many States local bodies have become week and ineffective on account of a variety of reasons, including the failure to hold regular elections, prolonged supersessions and 70 inadequate devolution of powers and functions. Further, having regard to these inadequacies, it is considered necessary that provisions relating to Urban Local Bodies are incorporated in the Constitution.
25. Admittedly, the nominated members are represented having a special knowledge or experience of municipal administration in the municipality . As per the Constitution (Seventy-Fourth Amendment) Act, 1992 the nominated members have no voting right. The said aspect was considered by the learned Single Judge and has passed the impugned order. We are of the opinion that the nominated members have no voting right. The Chief Electoral Officer committed an error in including the names of nominated members in the electoral roll.
26. The learned Senior counsel for the appellant submits that the petitioner/respondent cannot initiate parallel proceedings as the petitioner has already filed 71 an election petition and on the same ground the petitioner has filed this writ petition.
27. We have perused the copy of election petitions. The relief sought in the election petition reads as under:
"a) Call for records;
b) Order for re-counting of votes to exclude the twelve void votes caste by 'nominated persons' (referred to in Table-A) in favour of respondent No.1.
c) Declare that the result of the Election of respondent No.1, as Returned Candidate to fill the seat of Member of Legislative Council, Karnataka from Chikkamagaluru Local Authorities Constituency - 12 is void in terms of section 100 (1) of the Representation of People Act, 1951;
d) Declare that the result of the Election of respondent No.1, as Returned Candidate to fill the seat of Member of Legislative Council, Karnataka from Chikkamalagaluru Locak Authorities Constituency - 12 is "materially affected", by the improper reception to twelve(12) void votes caste in favour of respondent No.1, by 'Nominated Persons', referred to in Table-A in terms of section 72 100(1)(d)(iii) and section 100(1)(d)(iv) of the Representation of People Act, 1951;
e) Declare that the respondent No.2 is duly elected to fill the seat of Member of Legislative Council, Karnataka from Chikkamagaluru Local Authorities Constituency - 12;
f) Pass such other order or orders as this Hon'ble Court deems fit in facts and circumstances of the case, in the interest of justice and equity;
g) Award cost towards this petition."
The relief sought in the election petition is different from the one sought in the writ petition. Though similar grounds are raised in the election petition, it does not prohibit the petitioner from challenging the electoral roll in the writ petition. Further, the Election Tribunal has no jurisdiction to go into the validity of the electoral rolls under Section 100 the Act of 1951. Hence, it cannot be said that the petitioner has initiated a parallel proceedings.
28. Learned counsel for the appellant places reliance on various judgments. There is no dispute in 73 regard to the law laid down in the aforesaid judgments. But the said judgments are not applicable to the case on hand.
In view of above discussion, point No.2 is answered in negative.
29. Point No.3: In view of the above discussion, we proceed to pass the following:
ORDER The writ appeals are dismissed.
In view of disposal of the writ
appeals, pending IAs., if any, do not
survive for consideration and are
accordingly disposed of.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
RD/SSB