Karnataka High Court
Roopa D Bangera W/O Dinesh Bangera vs The State Of Karnataka on 17 April, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
I
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17" DAY OF APRIL, 2012
BEFORE
THE HON'BLE MR JUSTICE ASHOK B. HINCHIGERI
WRIT PtuhIQtJ lfo8120/201l (LB-ELE)
QgrWEEN:
Roopa D. Bangera,
Aged about 35 years
W/o Dlnesh Bangera,
Corporator,
Ward No.32, Kadn North,
R/at 3-w-5-518/38,
g
1
Floor, Madhuvan Commercial
Complex, Kadrl Kambla Road
Bijale Post,
Mangalore-04. ... Petitioner
(By Sri Jayakumar S PatIl, Advocate for
M/s.Jayakumar S. PatH Associates)
AND:
1. The State of Karnataka,
Department of Urban Development F
Authority, M.S Building,
Bangalore 560 001
Represented by its Pnnnpal Secretary.
t
F
Mangalore City C orooratior',
Lalbagh Road. Marigalore,
Represented by ;r Comm scio,'er.
ne Pets;'-
T .nj ()tt.ce I-r" "ti ('jfr're-r,
Pegs ra Comn is"o
1r ..' s's isl
4. Gulzar Banu,
W/o Shamshudin A Sheik,
Aged Major,
R/at Door No30t, 5140
5 Block, Katipalla Post,
Mangalore 575 030. Respondents
(By Sri K'M. Nataraj, Add!. Advocate General and
Sri N.B.Vishwanath, AGA for R-1 and R3,
Sri Vishwajith Shetty, Advocate for R-2
Sri Ashok Haranahalli, Sr. Advocate for
Sri Cyril Prasad Pais for C/R-4)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the proceedings dated
7.312 passed by the R2 vide AnnexureF and etc.
This writ petition coming on for preliminary hearing this
day, the Court made the following:
The petitioner s an elected Corporator of the second
r spo dent Mangalore City Corporation he belongs to BCA(W)
atcgo y h as hallenged that oart f ftc pro €edings,
aft 01 Annexure F whc[ iar that h ourth
ited uncon td c said
o i F urther the petti a g a wnt of
r is to the respondent No 3 t a o ft 9ornnaton
,f h ocutinnL_ ord to IOiO -sh ee toe 0
est of
F ift3 C! Oiy.
I
2. Sn Jayakumar S.PatIl, the learned Senior Counsel
appearing on behalf of the petitioner submits that the petitioner
is a woman belonging to Kulal caste. She was therefore eligible
to seek election to the post of Mayor of the said urban local
body, as it was reserved for BCA(W) That the petitioner belongs
to BC.A(W) is not at all in dispute. He submits that the only
reason for rejecting the petitioner's nomination form at
Annexure-C is that the caste certificate evidencing that she
belongs o BCA wa not filed along with the nomination fnrm
before 9.30 a m. on 7 3 2012.
3. Sri Jayakumar S.Patil submits that the notification,
dated 16.10 1995 enumerates the castes in BCA category and
that the BC A ategor without any reference thc r c me
r oetltionc. 'ias indeed filed the BC.A cc rtificate i s it d by the
Tahsiidar, along with the nomination form He subrntts that Rule
2(aa) of the said Pules .eads as follow'"
"2(n) 'C a' 'Neat OnE te r • F
I i-ti cc it To
- ievc '' k er the oulca. Jaied
- •,:,..c .WG ',e' 3 iitj', . 4
,.?'.tc" 'i.t. ! 1'
I
4
4. The learned Senior Counsel submits that as the
nomination form Is filed In the prescribed Form No.2 1, whIch is
accompanied by BCA certificate, the respondent No.3 ought not
to have rejected the petitioners nomination form. Rule 72 of the
Karnataka Municipal Corporations (Election) Rules, 1979 ('the
said Rules' for short) does not contemplate the filing of any
endosure with the nomination form.
5 He submIts that the respondent No.3 ought to have, In
the letter and splnt of Rule 12 B of the said Rules, accepted the
petitioner's nomination form. The provisions contained In the
said Rules read as follows:
"72-a Scrutiny of nominationa - After the
ommencer ient of thc meeting the Presiding Offices- ha!
utrs 3 t i nati aper de a d
rder and al aiou c Cou Ia
p-e'ent at t-ch meetino tie names of the council"
.viio ii his 3psnion nape oeer' duli. n3'm,'ared togettie.
w,th rpcJse f tha propoe.ers
6 rhe learned Ser'ior Counsel submits that the tenure of
yor i r dS ton f tht aka
L C .s C
hit, .c'si o'to rqn nc
1 .'t 4 .•'t' c
1
I, re..,, 0. t tj;.t
..-- '--
-- ; •.
even If a Corporator Is wrongfully declared that he is elected as a
Mayor, he shall hold that office for a penod of 1 year
1. Under these circumstances, if the petitioner is
relegated to the remedy of filIng the election petition, the
wrongfully declared/elected Mayor would complete his fixed temi
of 1 year The learned SenIor Counsel would term the remedy of
filing of the election petition as 'Illusory'.
8 As the election process itself is completed, the embargo
imposed by Article 1431G of the Constitution of India would not
come into play in this case
I As the ejection of the petitioner s nomination form and
1 o qjent act of he espndent No of declanng that tie
o ide i No 4 ele ted ncontcsted s actuated by alafides
Nataaj c ea d ddt a \cI ct
a p ir h detNo t e
bj arabilt ' t
I4OHINDER SINGH I AND
N HER NI F E E N MN SSIONER
6
reported in (1978) 1 SCC 405 to advance the contention that
there is a blanket ban on the litigative challenges to the electoral
process. The sole remedy available to the petitioner Is to file an
election petition. The remedy provided and prescribed by the
legislature covers the whole basket of the grievances of the
candidates. He submits that this writ petition is barred by Article
2437G of the Constitution of India.
11. The learned Additional Advocate General also brought
to my notice the Apex Court's judgment in the case of
GURDEEP SINGH DHILLON v. SATPAL AND OTHERS
reported in 2006(10) 5CC 616. In the said case, the Apex
Court did not approve of entertaining of the writ petition by the
ligi- ourt espect of a Municipal Co in il lection He also
lac s reliance n the Apex nt's jt dgment in the. ase of
KURAPATI MARIA DAS v. DRAM BEDKAR SEVA SAMAJAN
AND OTHERS reportcd in (2009) 7 SCC 387 Tn the saa case,
the Apex Court has heW that Lhe bar under Article 24376(b) is
e and ory.
I tct ettc arc 0
., rt .j iq..t.s''J'.ij bcci itt"
filing an election petition; election rights and remedies are
statutory In support of his argument, he read out paragraph
Nos.30 and 31 of the Apex Court's judgment in the case of
ELECflON COMMISSION OF INDIA THROUGH SECRETARY
v. ASHOK KUMAR AND OTHERS reported in (2000) 8 SCC
216 The said paragraphs are extracted hereinbelow:
3O To what extent Articles 329(b) has an ovemding
effect on ArtIcle 226 of the ConstItution The two
Constitution Benches have held that Representation of the
People Act 1951 provides for only one remedy, that
remedy being by an election petition to be presented after
the election is over and there is no remedy provided at
any intermediate stage The non obstante clause with
which Article 329 opens, pushes out Article 226 where the
dispute takes the form of calling in question an electior
cn pars S f 'Jahindet Singh (,ill s se AIR 1978 S(
51 (sup,. nc. pro vi
3 on of tht Constitutior and tt
It aid ogethe t i otallyectde hc gi of
tit? aDoattt u't Cd V 70
C. 7 te ii 0
6 7 S at 7
e
U' £3 h
8
would unduly protract ot obstruct the functioning of
democracy.
31. The founding fathers of the Constitution nave
consciously employed use of the words 'no election shall
be called in question" in the body of Section 329(b) and
these words provide the determinative test for attracting
appllcablhty of Artide 329(b). If the petition presented to
the Court "calls in question an ecti" bar of Article
329(b) Is attracted. Else it is not.
13. The learned Additional Advocate General drawing
support from the Honble Supreme Court judgment in the case of
UMESH SHIVAPPA AlIBI AND OTHERS v. ANGADI
SHEKARA BASAPPA AND OTHERS reported in AIR 1999 Sc
1566 submits that once the election is over challenge to the
electic r has to be made only y preferring the election netition.
When ar efficacious remedy i available for ventilating the
g c F rejectio f t c. i rrinat ii ape th High
d ordinarily mt ic t
4 He also read out Paragr pi o f F Apex Court's
j r £ it n thc ase of C.SUBRAHMANYAM v
K.RAMANJANEYULLU AND OTHERS p• ted in (1998) 8
5CC 703 it rtagid j I f YhS
I
V
K
'p
V
*
1)
3. In our opinion, the main question for decision being the non-comphance of a provision of the Act which is a ground for an election petition in Rule 12 framed under the Act the writ petition under A,ticle 226 of the Constitution of India should not have been entertained for this purpose. Accordingly the appeal is allowed. The Impugned order of the High Court is set aside resultinq in dismissal of the writ petition. No costs."
15. The learned Additional Advocate General submits that Rule 70-XE of the said Rules makes the provisions of the Conduct of Election Rules under the Representation of People Act applicable for the elections under the Kamataka Munidpal Corporations (Election) Rules, 1979. Under the Representation of the People Act, 1950 a candidate belonging to Scheduled aste has to tilt the caste certificate along with the nomination paper if he s seeking election from a reserved constituency Whether the petitioner has produced the caste certificate, whether it corresponds to the caste certificate defined 'n Rule 7 of the a d Rule tc are I he disputed aues ior s. ivhi t c. vd ro dg id Ats 2ofc.
(or titution C nd'4 0 ubnuts U iparnec Addirior a d,oratc .er en' Øe 10
16. Sri Vishwajlth S. Shetty, the learned counsel for the respondent No.2 submits that Section 20 of the KMC Act and Rule 77 of the said Rules are enacted only to provide remedy to the party aggrieved by the election of a Mayor. Therefore, the petitioner has to resort to the initiation of the election proceedings. He further submits that as a matter of fact, one councillor of the second respondent Corporation has already filed the election petition (Miscellaneous No.16/2012) challengIng election of the fourth respondent as the Mayor of the second respondent Corporation.
11. Sri Ashok Haranahalli, the learned Senior Counsel appearing for Sri Cynl Prasad Pals for the respondent No 4 submits hat the petitioner has approacnea vie wrong torum by fIg h wnt tt th ghar alte ative aid effiaioi iedy is availablc. er der Sectio I f he KMC Act Ic submits thdt no interference with the 'mpugned nlectlon of the Mayor of the second respondent Corporation is called for under Artvle 226 of the & nstitut.on or India in flaw of the ba I •r' "sad by Art" in '4 :zc nf tha cor;stit' tinn f Trdia and the / rc'ned/ an 'ectij t n ?rvidC (Pt .!• 'I
18. The learned Senior Counsel brought to my notice the Honbie Supreme Court's decision In the case of JASPAL SINGH ARORA v. STATE OF NP. AND OTHERS reported in (1998) 9 SCC 594. He also placed his relIance on the Apex Court's judgment in the case of Iturapati Maria Des (supre). It is held therein that Invoking the constitutional jurisdiction of the High Court under Article 226/227 for challenging the election of a Chairperson of the Municipal Council Is Impennlssible, the only remedy available to challenge the election was by raIsing the election dispute under the local statute 19 Sri Ashok Haranahalli further submits that the petitioner vas elected as a Corporator from the general ategory She as rot elected a a orr orator frort the ackwa d s ard Iheref re the. laim of the petitione to e atg ted eifi ti r tic. qiry etfiat t ' at '. ',t, bed "r hC fG'J p tt t it,
20. The learned Senior Counsel submits that the certificate filed along with the nomination form on 7.3.2012 Is not what is prescribed by law; on the other hand, the certificate indicating that she belongs to SCA was filed at 12 0' clock, though It ought to have been filed at 9:30 a.m. He also takes exceptIon to the several columns being left blank In the second certificate filed belatedly at noon
21. He submits that just because the petitioner claIms that she has the majonty, she cannot enjoy any extra privilege. As the prescribed caste certificate was not filed at 9:30 a.m. on 7.3.2012, the Returning Officer (the respondent No.3) had rightly rejected her nomination form. The learned Senior Counsel also takes serious exceptior' to the petitioner not challenging the separat€ order rejecting the petitioner's nomination form.
heco c. I j der, ri aaku arSPat
ar g cLal 0 'i eti re subirt ta KDOViS
to itai tule 70- 1 o he. aid Rule a applicatio
whatco c for the accepta or rejection of hc nomination
I
$t.rw
-'e 3 't€.t t"( S' çr"i
r.ibn it Silifls r4J Pa Ch.pter TT I..
Ci' htad' j sf mc, bi Eint '
r 'Io'iri';j Mic ne,
13
('EVM' for short). Therefore, only such of the provision dealing with the voting by EVM and made under the Representation of the People Act, 1951 and the Conduct of Election Rules, 1961 have application for the elections under the KMC Act
23. He submits that the filing of the nomination papers did not reach the scrutiny stage at all. The respondent No.3 cannot get away with what he has done. He is answerable for the rejection of the petitioner's nomination form for no reason. He submits that none of the authorities relied upon by the respondents have any application for the facts of this case, as there is no legal impediment in exercising the writ jurisdiction as the election process Is completed
24. The submissions of the learned counsel nave received my thoughtful ronslderation.
51 isne.esar to 4rtotesclere f I¼ct i 1w. matter of atsing the disputc over tte electio i of thc. Mayor o the .o'porat,on. Section )(1 of the lflk. Act read.., a' follows.
"20. Power to make rules ,egarding election of '(epa,, Deputy 'Iayor and members a d Chairna '1 ea a 'ti of Sta tdlng CommIttees 1 .
S -g. . v ). r--..h ' 14 of Standing Committees and the determination of disputes relating to such election and the filling up of vacancies in the said offices shall be in accordance with such rules as may be prescnbed.
(2) Any dispute relating to the validity of the election of Mayor or Deputy Mayor 0' member or Chairman of a Standing Committee shall be decided by the District Court having Jurisdiction. An appeal shall lie to the High Court from an order of the District Court within a period of thirty days from the date of such order excluding the time required for obtaining a copy of the order:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause Ibr not preferring the appeal within such penod.
p 26 Sub-aectior (1 states that the disputes over the election of the Mayor, etc. shall be determined in accordance th tic Rules, whict nay be prescribed Sub Section states that suh disputes shall be decided by the District Curt.
c. of e id e e be. Sday r or tiling the election petition from the date uf th" election on one or e c.td C ,J e. I / c Np qJ kuies 'Pids jc f I 0 i.
I '5 '77. Election petition-- (1) No election of the Mayor, Deputy Mayor, Members and the Chairman of the Standing Committees shall be called in question except by an election petition before the District Judge having Jurisdiction over the local hmits of the corporation presented by any candidate in such election or any other Coundior within fifteen days from the date of the election on one or more grounds specified in Rule 79 and Rule 80. The election petition under this rule shall be accompanied by a deposit of two hundred rupees as security for costa"
28. Rule 79(b) of the said Rules spedfles that the wrong rejection of the nomination is one of the grounds for filing the election petition. Rule 19 reads as follows:
"7a Grounds for declaring the election of the returned candidate to be void. - If the District Judge is of opinion (a, ttat the result of tte clect'on has been materially affected. -
(i) b ttc irproger ectptic r fUse o
'ott: r
( npr ith vo'
the Act or .A any of thesa
at it or iator fa y naidat 4 t°er
Lro'jIy -dfe:ted .' tha the nor-i'nat,a, c the C. sflttJitttor f / tnt c. ;di'ate .7' rn-. lOt w "irMr fl 71 * e a ga tr eep'% I, 16 the Distnct Judge shall declare the election of the returned candidate to be void."
29 This being the statutory scheme, the question that arises is whether this Court can exercise Its extraordinary jurisdiction notwithstanding the statutory remedy. The Apex Court in the case of .laspal Slngh Arora (supra) has held that on seWed principles the statutory remedy of filing the election petition and in view of the bar contained in Article 243ZG, no interference with the Impugned election of the President of the Municipal Council is called for.
30 In the case of Kurapati Maria Des (supra), the short-cut of filing the writ petition is not appreciated. In the (asp nf Mohlnder Slngh Gill (supra), the Apex Court has held that there is a blanket ban on the iitigatlve challenges to the elect' ral steps 31 In a ratena of decisions the Ape; Cou't has held that the bar nder Article 243Z6(b) is absolute an I mandat ry. I tre case "t Election Commission of India (supra), the Ape o F d t e Ct' ht ir re di a • ,,en I thetr art pr;n;v. 'dr :r..--;;'. rit;e 17 illegalities, they are to be ventilated only in a manner prescribed by law In the case of Umesh Shiveppa Ambi (supra), the Apex Court has held that once the election is over, challenge to the election has to be made by preferring the election petition. Even If there Is a non-compliance with the requirements of law, the same cannot be a ground for filing the writ petition; it constitutes a ground for filing the election petition.
32. Considering the bar contaIned in Article 243ZG(b), the statutory scheme as contained In the Karnataka Municipal Corporations Act, 1976 and the Kamataka Municipal Corporations (Election) Rules, 1979 and the catena of decisions, to which the references are made hereinabove, I am disinclIned to e tertain this pe.tition r m nts.
33. For yet another reason too, I am not inclined to onsde pe. t wrt r t 1 dispit h3t C orporator flas already raised the election dispute (Miscellaneous No 1 JOV befo the Distri t )udgc If I' de Ion th ou t oet 1 ier sr ere tv dt tic I sffrt if r.i.jenng tnt' id Its eliarectr Fl' 1"s2O12 ott c ter '.r lx merits, there is also the possibility of conflict of decisions.
Whether the petitioner flied the caste certificate in the prescribed form, if so at what time, etc are all the disputed ques tions of facts. Viewed from any angle, It is not desirable to cons ider this petition on merits. I reject this petition on the short grou nd of the availability of aiternative remedy.
34. At this stage what is to be noticed and highlighted is that Rule 77(1) of the said Rules prescribes 15 days' limit ation period within which the election petition has to be filed Itis this Court's anxiety that the petitioner should not be rend ered remediless, more so. when she has approached this C ourt by filing this writ petition within & days of the third respo ndent s declaration that the fourth respondent is eiected as the May or of the second respondert Corporation.
3, I he petitioner is therefore permitted t file a duly
const tuted elect on petition betore the District judga The
)istrict Judge i directed to dispose of the inticipated lertion
petition or' we. it , it tre ant fild vih • t o c*- to
ody VIIL rj
' ssi fiiaors •vnac I
tsr,' ti'. • .j s'r_ f •.etin.
•
j t'•c. f(
n
4 rnal
0'
19
Court in the case of DANDA RA
JESHWARI v. BODAVULA
HANUt4AYAMMA AND OTHERS
reported in (1996) 6 SCC
199 The relevant paragraph of the said judgment is extracted hereinbelow:
H3 The remedy is a statutory remedy and limitation is one of the conditions to entertain election petition. By Judicial order the limitation cannot be nullified. In support thereoi he placed reliance on the Jud gment of this Court in Union of India v Kirloskar Pneum atic Co Ltd. We find no force in his contention. It Is not his case that the High Court lacks Jurisdiction to entertain the writ petition against the election of a Sarpanch and declaration of the result of the election of a Sarpanch, etc. The High Court exercising its power under Article 226 of the Constitution declined to interfere in the elec tion disputes since alternative remedy of filing election petition and adjudication has been provided in the relevant statutory rules Car from saying that the Hig h Court has no uri di tor, the High Court exercis ed self-restrant n exercise of the vower wider Article 226 ar d Iirecta°cl the parties t" akdd of a'teinarive rem edy In thic ne, thr ittedly th e cctic; vf aocn j was held an I recult .as cit Jared or, .4 6 1995 and the v'fl 1 petition was fled c'; 25 6- '9 Power o' the Gove ,rrert'r the p o...ess ' oils ws' 'hillcrocJ .s 'dc' " w.i' ito..' t' s. t 'c,.'',..,, P OucSt,11 a'' ...ne ' I ':,r cf.!V fl1"i , n cAL 1 rj ,, ' J r,u qrs xpe .PL i c -l 4'%t4 yr 'p 4 20 held, the disputed questions of facts would be canvassed in an election petition as pro vided in Rule 3 of the Rules.
The High Court rightly declin ed to investigate into disputed questions of facts and 'efused to go into the question relegating the parties to pursue the remedy of election dispute. In view of thi s the High Court has rightly directed filing of the election petition within three weeks from the date of disposal of the writ petition and further directed the Tribunal not to go into the question of limitation and instead decide the matter on merits •• a
36. Needless to observe that the District Judge shall dispose of the anticipated electio n petition in accordance with law. He shall do everything pos sible to dispose of the election petition as expeditiously as possib le and in any case within two months from the date of its pre sentation. If need be, the Distric t Judge shall hold the trial on day to-day basis The respunderit No.4 is directed to eo operate.
wlt[ ü e. District Judge in the speedy disc osal at th' matter 31 i s pctition is acccrdinyl, dispose I of 'lo ordr as to costs.
'S t, --
11" 1