Deputy Commissioner vs Smt N Latha on 28 September, 2010

[Cites 7, Cited by 5]

Karnataka High Court

Deputy Commissioner vs Smt N Latha on 28 September, 2010

Bench: A.S.Bopanna

IN1}H€HKH{COURT(ﬂ?KARNATAKA,BANGALORE
DATED THIS THE 287" DAY OF SEPTEMBER, 2010

PRESENT

THE HON*}3LE MR. J. S. KHEHAR, CHIEF A

AND

THE HONBLE MR. JUS'HcE"A.-.S._EOE.A1$TN..A:   V

WRIT APPEAL NO. 3065/S20iQ_A[LB§E_IA.E)». = "  

AI\IE__  A  
WRIT APPEAL NOS. 3095397/201-SQ (L. 

BEE WEEN :

DEPUTY COMMISSIONER  S'

DAVANAGERE DISTRICT  _  '
DAVANAGERE,  I

APPELLANT

[BY SR1 BASA'§*i'ARAJ'1'*;j~:ARE1:jEy,"-'PEL.Q;A.}

AND : 

1.

SMT= N.» ' .  
W/O BASAVARAJAPPA
¢ AGED ABOUT :25 YEARS
 '*aRESI:)_1NG A'FvJ-GLADAL
_ ' CF1ANNA_GIRI TALUK
" ~ . DAVANc3ERE DISTRICT.

 SMT: 7fjr;.V1: NAGAVENI
 W,-'0 .S..--v. VIJAY KUMAR
AGED ABOUT 25 YEARS
S RESIDING AT JOLAOAL
'   CHANNAGIRI TALUK

V' - ..5DAVANGERE DESTRECT.

SR1 K. MANJUNATH
S/O KOTRAPPA
AGED ABOUT 23 YEARS



RESIDING AT JOLADAL
CHANNAGIRI TALUK
DAVANGERE DISTRICT.

4. THE STATE ELECTION COMMISSION
NO. I, CUNNINGHAM ROAD
BANGALORE - O1
REP. BY ITS COMMISSIONER

5. THE JOLADAL GRAMA RANCEAYATHI.~----».._fjj~.. 
CHENNAGIRITALUK    p ,. 
DAVANGERE DISTRICT
REP. BY ITS SECRETARY

{BY SR1 B K MANJUNATH, ADVIIFVOR RI T'0__  
SRI K N PHANINDRA, ADV.i_EQR__R4) *
THESE WRIT API'--'>EAIS_ I+'I"I;EI;'a -,1}/S 4 OF THE
KARNATAKA HIGH COURT VAr:T' RR.m_yINS To SET ASIDE
THE ORDER PASSED.-'IN~ . fmE._'w.p;NQ".".v" 18323-25/2010
DATED 20/O7,/2i")._}.(}. I   

THESE IAIRREIIISI-3.;:I§IxII_I\IG'5..ON' FOR PRELIMINARY

 I52§;'i', "e_HIEE"'J'IIS'TIcE DELIVERED THE
FOLLOIWING:  "   . ;

rpSJﬁEGMENT

   (5;J';'*'i0raI):

 

I  Kareddy, learned Pr}. Government

 the appellant, Mr. B.K. Manjunath, learned

I""~.__I"*»r:Qur1seI_fI)r respondent NOS. 1 to 3.

I We have heard the learned counsel for the I _MI'_I'IfE1I parties.

'E7 ' Notvyithstarildinganything in this Constitution- V_ .t1}ie0'--:;alidity of any law relating to the {:7

3. The order passed by the learned Single Judge on 20.07.2010, whereby the preliminary of ma.inta.inability: " * of objection in respect W.P.Nos.18323~325/2010 was matter of challenge at the hands _of..the applella'iﬁitllhefein-tiV_V 0' ' In order to substantiate the of objection raised at the hands:'of_the0appellahti5._rei7erence " it has been made to Article 2€l3{t)}--.of-»..the lC'onsti.tlution of India.

4. Article . 'hereunder:

"243-500. to. by courts in electoral V "~A._clelimitation of constituencies or the A. aiiotrnent of seats to such constituencies, made or purporting to 0' be made under article 243K, shall not be called in question in any court;

V[b} no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

4T ut_und'e1=:rciir»ice_l

5. Based on Article 243(0), it has been the submission of the learned counsel for the appellant, that the reservation of Joladal Grama Panchayathior women candidates belonging to B.C.[A) categtoijf' _ notiﬁcation dated O5.06.2010__.....w_as fnot'1:'_j31isti'ii.ed-,v_V "

specially when the Office of the':.pVii%§e*~ aforesaid Joladal Grarna Panvcliayath wasp' be " it kept open for general category--~c:andidAates.l'

6. objection of maintainat)ility--;.:lea1Trie'djf-...cbtinl3ell.;Afor the appellant has invited'l"oii1'i position declared by the of U.P and others, etc., ...

vs--- Pradathari S¢ir1gqiitV"i'itVIshettra Samiti and others, V' 9135 SC 1l'i1'2"Wherein the Apex Court observed as V "e~'7'.W":l1at is more objectionable in the approach offthe"i~Iigh Court is that although clause (a) of Article 243-0 of the Constitution enacts a bar on A the interference by the Courts in electoral matters . "_«including the questioning of the validity of any law C relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any parichayat, the High Court has Gaﬁamamwélw gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari V. Delimitation Commission, (1967) 1 SCR 400 : {AIR 1967 SC 669). ln_._that case, a notification of the Delirni't.ation Commission whereby a city which had -fb'e_e'n'a general constituency was notiﬁed as revse--r_vuedt' tor the Scheduled Castes. This was challe1f'1ged.yo11"the'*l V' . ' ground that the petitioner had a be a"

candidate for Parliament" ~-.fror'_n the lvsjaiclii, constituency which had been :t.al{en--rrlaw*ay.'="fl'h.isC Court held that the impugnedrnotification law relating to the delimitation' of _§the constituencies or the allotment of --se:'ats":Vto"'such constituencies made un'der,Articie_327} of the Constitution, arid ..that; an 'exarnination' 'of"Sections 8 and _9fp'of_ the lDeliH_1it.atio11 'Commission Act showed?_ the matters Ath'ert;--i--1=1 dealt with were not subject'i~v'to_ tlie-«.__scrutiriy of any Court of law. There --wa.s fa Verygood reason for such a provision bveca'usle[-if tl"ifr:"or't:l.ers made 'under Sections 8 and 9 were notto...be.ytreate_d as ﬁnal, the result would be thiatany Voter, 'iif_.he"s_.o wished, could hold up an election "-in"clefin'i*tely by questioning the _delimit.atio1'1V.of constituencies from Court to Court. Although an order under Section 8 or 9 of 'they {Delimitation Commission Act and published tin-derlﬁection 10(1) of that Act is not part of an 4V'i?arliaInent, its effect is the same. Section C' -.__«l(')(«4'l_)_»,.__of, that Act puts such an order in the same povsition as a law made by the Parliament itself which could only be made by it under Article 327.

Iifwe read Articles 243--C, 243~K and 243-0 in " place of Article 327 and Section 2.(kk}, of the __-Delimitation Act, l950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged or the Court could have entertained such challenge except on the ground Ci"

that before the deiimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections"-was issued. The High Court not only entertai_ned.._<the challenge but has also gone into the me.r.i_ts of." alleged grievances although the chail.enge.1'p:*wa's_p' made after the notification for theH__eleu<.:tion 'was. K issued on 313? August, 1994, i'...

7. In addition to the the Supreme Court in Vtl7:§'~..pjudgmser1tAC:'rel'erre'dlj to it hereinabove, reference.._WaS~i"'als(J; lIl%if1a_de to"'~a*ldecision rendered by a Full seiﬁh High Court in lﬂaryana and others, The Fuil Bench having'tVlollot{¥§;d judgment rendered in the supra, held the writ petition as not ,Inain'tainab..ieid it it order to repudiate the submissions learned counsel for the appellant, the leariiedv-._'eou°nsel for the respondents has invited our _. _. " ,ﬂ:atteE:ntion.. to the judgment rendered by the Apex Court in Eléciion Commission of India through Secretary - C Ashok Kumar and others, (2000) 8 SCC 216, and E:

more particularly to the following conclusions recorded therein;

":31. The founding fathers of the Cons'titutiou have consciously employed use of the "'.Tr1_O election shall be called in question" ingthe of: Section 329{b] and these words..._,p'rovi'd:e _the" ._ determinative test for attracting .applicabilityf«. of, Article 329(b}. If the petitionp.resente.d*t'o._ the.' Court "calls is question an election" the Article 329(b) is attract'ee:l_.. Else' it is r!,0't'.'uA

32. For convenience _sake"we"would now generally sum. 'up our "conVclusions""b"y partly restating What theftwo.pCo1i.stitution Benches have already said and then fadding"b'y. clarifying what follows therefron,i"'in-viewiof _ the analysis made by us hereiiiabovez (1) If an" election;"5[the'-~term election being widely _ .... ..int'erpreted as ~.toH_ include all steps and V entire proceedirigs commencing from the date , of Vno'tif1»caticoneA "of election till the date of " udeclaratiojn. '"'''result) is to be called in Vqiiesvtioii and wiiich questioning may have the L effect "of * interrupting, obstructing or A' protractingvthe election proceedings in any if E " manner, the invoking of judicial remedy has to Afpostponed till after the completing of if We-if-«procee'dings in elections.

( decision sought and rendered will not amount to "calling in question an election" if it V ° subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. T3 in (3) {5} Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the Well--settled parameters which enable judicial review of decisions of statutory bodies such case of mala fide or arbitrary eXercise..of being made out or the statutory__--body"--1je--irig_p ~ shown to have acted in breach of _lav4,§. ' Without interrupting, 1obst_rL'u3ti'ng'1'or__ delaying7 the progress of the "-election°~.proceedii*1gs',«:

judicial intervention is avaiilaableuifl.assistance " -' of the court has been soug_ht_for to "

correct or smoothen " the 'progress'; of the election proceedings; to. removedthe obstacles therein, or to pres«erve piece of evidence if the same would lost 'or , destroyed or rendered irretrievable u,b}'"the'5tirhe the results are _d.ecla.red; and".stage"is set for invoking the juri3sdi:;:1tio1i,Vof ,._.Tlie.,lco*Ln_'t circumspect and act gvcauition 'while . entertaining any election dispute"-.though'"'r1ot hit by the bar of Article V329(b}._btiVtV.brought to it during the pendency protracting . or ' proceedings. Care has to be taken to see that of election'iproc.eedings. The court must guard ag'ainst~any'-attempt at retarding, interrupting, stalling of the election »._"~t,her'e.._ is no attempt to utilise the court's vv..':"'..ind1;l.gence by ﬁling a petition outwardly in'no'cuous but essentiaily a subterfuge or ' ' pretest for achieving an ulterior or hidden end.

. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."

9. Having perused the conclusion rendered in the decision relied upon by the learned counsel for the respondents and more particularly, conclusion -para 32 (extracted above}. we are satisiiedi' ~ W.P.l\ios. 18323-325/2010 ﬁled hat. the lofVl_"rthe_ ll' respondents before the election "had. hearing it would have interiiiipted, ofdolayed " it the progress of the eleotiongl-----lll}i11s;..iNe.are~of..the View, that under Article 24dl'{lQ')' of India, the ob}'ection_.Vr-aiised during the course of 2010 was fully drawn by the learned'_Slingle: accordingly liable to be set aside, _ tl2._eretore hereby set aside. ~ HT instant appeals are, accordingly allowed. Sd/~ Chief Justice Sd/-.

Judge V hrp

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Karnataka High Court