Karnataka High Court
The Chief Secretary vs Yallappa Shivasharanappa Naikodi on 13 January, 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE ANIL B KATTI
WRIT APPEAL NO.200028/2022 (LB-ELE)
C/W
WRIT APPEAL NO.200037/2022 (LB RES)
WRIT APPEAL NO.200185/2022 (LB RES)
WRIT APPEAL NO.200186/2022 (LB RES)
IN W.A.NO.200028/2022
BETWEEN:
1. THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA, DR.AMBEDKAR VEEDHI
BENGALURU - 560 001
2. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA, DR.AMBEDKAR VEEDHI
BENGALURU - 560 001
BY ITS PRINCIPAL SECRETARY ... APPELLANTS
(BY SRI PRABHULING NAVADGI, ADVOCATE GENERAL &
SRI.Y.H.VIJAYA KUMAR, ADDL. ADVOCATE GENERAL A/W
SRI.MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE)
AND:
YELLAPPA
S/O SHIVASHARANAPPA NALKODI
AGED ABOUT 59 YEARS
OCC : CORPORATOR
W.A.No. 200028/2022 C/W
-2- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
CITY CORPORATION, KALABURAGI
R/O EKALVYA VIDYALAYA SCHOOL
SHIVASHAKTINAGAR,
TAJ SULTANPUR ROAD
KALABURAGI - 585 104 ... RESPONDENT
(BY SRI.N.B.DIWANJI, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 04.02.2022 IN W.P.NO.202488/2021 PASSED BY
THE LEARNED SINGLE JUDGE IN THE INTERESTS OF JUSTICE AND
EQUITY.
IN W.A.NO.200037/2022
BETWEEN:
1. MUNIRAJU GOWDA P M
AGED ABOUT 44 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.27/1, TULASI VASANTHPURA MAIN ROAD
KONANAKUNTE CROSS, DODDAKALLASANDA
BENGALURU - 560 062
2. LEHAR SINGH SIROYA
AGED ABOUT 74 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.145, 9TH CROSS, 3RD MAIN
RMV 2ND STAGE, HIG COLONY, VTC
BENGALURU NORTH - 560 094
3. BHARATI SHETTI
AGED ABOUT 61 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.F-4, 2ND FLOOR
"SAI KRISHNA", CANARA BANK COLONY
BENGALURU SOUTH - 560 061
4. SAVADI LAKSHMAN
S/O SANGAPPA
AGED ABOUT 62 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.985, OPP. SMS COLLEGE
SATTI ROAD, ATHANI
BELGAUM - 518 123
W.A.No. 200028/2022 C/W
-3- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
5. RAGHUNATH RAOMALKAPURE
AGED ABOUT 63 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.19-1-166
SHIVANAGAR, BIDAR - 585 401 ... APPELLANTS
(BY SRI AMEET KUMAR DESHPANDE, SR. COUNSEL FOR
SRI.GOWRISH S KHASHAMPUR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIDHANA SOUDHA,
BENGALURU - 560 001
BY ITS SECRETARY
2. THE REGIONAL COMMISSIONER
KALABURAGI DIVISION
KALABURAGI - 585 102
3. THE COMMISSIONER
CITY MUNICIPAL CORPORATION
KALABURAGI - 585 102
4. THE ASSISTANT COMMISSIONER
KALABURAGI - 585 102
5. SHAIK AJMAL AHEMED AFZAL GOLA
AGED ABOUT 40 YEARS
OCC: CORPORATOR, WARD NO.21
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.E-1-980, NEW JEWARGI ROAD
NEAR AMBA BHAVANI TEMPLE
KALABURAGI - 585 102
6. SACHIN SHIRWAL
AGED ABOUT 32 YEARS
OCC: CORPORATOR, WARD NO.44
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.LIG 28, MSK MILL ROAD
NEAR HANUMAN TEMPLE, SHANTINAGAR
KALABURAGI - 585 103
7. LATA RAVINDRA KUMAR
AGED ABOUT 46 YEARS
W.A.No. 200028/2022 C/W
-4- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
OCC: CORPORATOR, WARD NO.49
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.1-933, ADARSH MARG
OLD JEWARGI ROAD, VISHALNAGAR
4TH CROSS, TARFILE, KALABURAGI - 585 102
8. SMT.ANUMAPA
W/O RAMESH KAMAKNOOR
AGED ABOUT 37 YEARS
OCC: CORPORATOR, WARD NO.22
KALABURAGI MUNICIPAL CORPORATION
R/O CHOWDESHWARI COLONY, BRHMPUR
KALABURAGI - 585 102 ...RESPONDENTS
(BY SRI PRABHULING NAVADGI, ADVOCATE GENERAL &
SRI.Y.H.VIJAYA KUMAR, ADDL. ADVOCATE GENERAL A/W
SRI.MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE FOR R1,
R2 & R4; SRI.D.P.AMBEKAR, ADVOCATE FOR R3;
SRI.MAHADEV S PATIL, ADVOCATE FOR C/R5 TO R8)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 04.02.2022 IN W.P.NO.200347/2022 PASSED BY
THE LEARNED SINGLE JUDGE IN THE INTERESTS OF JUSTICE AND
EQUITY
IN W.A.NO.200185/2022
BETWEEN:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA, BENGALURU - 01
REPTD. BY ITS SECRETARY
2. THE REGIONAL COMMISSIONER
KALABURAGI DIVISION
KALABURAGI - 585 102
3. THE ASSISTANT COMMISSIONER
KALABURAGI - 585 102 ... APPELLANTS
(BY SRI PRABHULING NAVADGI, ADVOCATE GENERAL &
SRI.Y.H.VIJAYA KUMAR, ADDL. ADVOCATE GENERAL A/W
SRI.MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE)
W.A.No. 200028/2022 C/W
-5- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
AND:
1. SMT.HEENA BEGUM
W/O ABDUL RAHEEM
AGED ABOUT 27 YEARS
OCC: CORPORATOR, WARD NO.10
KALABURAGI MUNICIPAL CORPORATION
R/O SHAIK ROJA, ALAND ROAD
KALABURAGI- 585 104
2. THE COMMISSIONER
CITY MUNICIPAL CORPORATION
KALABURAGI - 585 102 ...RESPONDENTS
(BY SRI A M NAGARAL, ADVOCATE FOR C/R1;
SRI.D.P.AMBEKAR, ADVOCATE FOR R2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 04.02.2022 IN W.P.NO.200346/2022 AND GRANT
SUCH OTHER OR FURTHER RELIEF OR RELIEFS AS THIS COURT
MAY DEEM FIT, IN THE CIRCUMSTANCES OF THE CASE.
IN W.A.NO.200186/2022
BETWEEN:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA
BENGALURU - 01
REPTD. BY ITS SECRETARY
2. THE REGIONAL COMMISSIONER
KALABURAGI DIVISION
KALABURAGI - 585 102
3. THE ASSISTANT COMMISSIONER
KALABURAGI - 585 102 ... APPELLANTS
(BY SRI PRABHULING NAVADGI, ADVOCATE GENERAL &
SRI.Y.H.VIJAYA KUMAR, ADDL. ADVOCATE GENERAL A/W
SRI.MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE)
W.A.No. 200028/2022 C/W
-6- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
AND:
1. SHAIK AJMAL AHEMED AFZAL GOLA
AGED ABOUT 59 YEARS
OCC: CORPORATOR, WARD NO.21
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.E-1-980, NEW JEWARGI ROAD
NEAR AMBA BHAVANI TEMPLE
KALABURAGI - 585 102
2. SACHIN SHIRWAL
AGED ABOUT 31 YEARS
OCC: CORPORATOR, WARD NO.44
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.LIG 28, MSK MILL ROAD
NEAR HANUMAN TEMPLE, SHANTINAGAR
KALABURAGI - 585 103
3. LATA RAVINDRA KUMAR
AGED ABOUT 45 YEARS
OCC: CORPORATOR, WARD NO.49
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.1-933, ADARSH MARG
OLD JEWARGI ROAD, VISHALNAGAR
4TH CROSS, TARFILE
KALABURAGI - 585 102
4. SMT.ANUMAPA
W/O RAMESH KAMAKNOOR
AGED ABOUT 36 YEARS
OCC: CORPORATOR, WARD NO.22
KALABURAGI MUNICIPAL CORPORATION
R/O CHOWDESHWARI COLONY, BRHMPUR
KALABURAGI - 585 102
5. THE COMMISSIONER
CITY MUNICIPAL CORPORATION
KALABURAGI - 585 102
6. MUNIRAJU GOWDA P M
AGED ABOUT 45 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.27/1, TULASI VASANTHPURA MAIN ROAD
KONANAKUNTE CROSS, DODDAKALLASANDA
BENGALURU - 560 062
W.A.No. 200028/2022 C/W
-7- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
7. LEHAR SINGH SIROYA
AGED ABOUT 75 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.145, 9TH CROSS, 3RD MAIN
RMV 2ND STAGE, HIG COLONY, VTC
BENGALURU NORTH - 560 094
8. BHARATI SHETTI
AGED ABOUT 60 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.F-4, 2ND FLOOR
"SAI KRISHNA", CANARA BANK COLONY
BENGALURU SOUTH - 560 061
9. SAVADI LAKSHMAN
S/O SANGAPPA
AGED ABOUT 61 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.985, OPP. SMS COLLEGE
SATTI ROAD, ATHANI, BELGAUM - 518 123
10. RAGHUNATH RAO MALKAPURE
AGED ABOUT 62 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.19-1-166, SHIVANAGAR
BIDAR - 585 401 ... RESPONDENTS
(BY SRI.MAHADEV S PATIL, ADVOCATE FOR C/R1 TO R4;
SRI.D.P.AMBEKAR, ADVOCATE FOR R5;
SRI AMEET KUMAR DESHPANDE, SR. COUNSEL FOR
SRI.GOWRISH S KHASHAMPUR, ADVOCATE FOR R6 TO R10)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE DATED 04.02.2022
PASSED IN WRIT PETITION NO.200347/2022 (LB-RES) AND GRANT
SUCH OTHER OR FURTHER RELIEF OR RELIEFS AS THIS COURT
MAY DEEM FIT, IN THE CIRCUMSTANCES OF THE CASE.
THESE WRIT APPEALS PERTAINING TO KALABURAGI BENCH
HAVING BEEN HEARD AND RESERVED ON 13.12.2022 COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, K.S.MUDAGAL J.,
W.A.No. 200028/2022 C/W
-8- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
SITTING AT PRINCIPAL BENCH THROUGH VIDEO CONFERENCING
DELIVERED THE FOLLOWING:
JUDGMENT
These matters relate to the election of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation. Kalaburagi Municipal Corporation consists of 55 wards. Each ward is represented by a Corporator. The elections to the Corporation were being held once in every five years. After the election of the Councillors, two amongst them will be elected as the Mayor and Deputy Mayor of the City Corporation.
2. The General Elections of the Councillors to the Kalaburagi Municipal Corporation was held on 06.09.2021. In that election, 23 Corporators were elected from Bharatiya Janata Party, 27 Corporators were elected from Indian National Congress, 4 Corporators were elected from Janatha Dal (Secular) and one Corporator was elected as independent candidate.
3. The posts of Mayor and Deputy Mayor of various Municipal Corporation in the State of Karnataka were being filled up in accordance with the provisions of the Karnataka Municipal Corporations Act, 1976 ('the KMC Act' for short), W.A.No. 200028/2022 C/W
-9- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 Karnataka Municipal Corporations (Elections) Rules, 1979 ('the KMC Election Rules' for short) and Guidelines issued by the State Government from time to time.
4. Section 10(1A) of the KMC Act provides for making reservations to the posts of Mayor and Deputy Mayor of the City Corporations in the State to the persons belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and Women.
5. Article 243T of the Constitution of India (Clause 4 and 5) provides for making reservation in favour of women on rotation basis and Section 421(1) of the KMC Act empowers the Government to make rules regarding election on reservation. Accordingly the State Government has been issuing guidelines on notifications every year regarding allotment of offices of Mayor and Deputy Mayor to various categories by rotation. The latest of such guidelines were issued under Government Order No.UDD 92 MLR 2014 dated 27.08.2014 keeping in view Article 243T of the Constitution of India, Section 421(1) of the KMC Act, the KMC Election Rules and the order of the Supreme Court dated 01.02.2013 in SLP W.A.No. 200028/2022 C/W
-10- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 3909-3910 of 2003 and the order dated 13.02.2013 in W.P.(Civil)No.89/2013, modifying the guidelines dated 04.05.2013 regarding the reservation of the posts of Mayor and Deputy Mayor for various categories by rotation in Municipal Corporations in Karnataka.
6. Accordingly, the State Government issued notifications dated 01.01.2018, 03.09.2018, 26.12.2019 and 11.02.2021 allotting the offices of Mayor and Deputy Mayor in all 11 city Corporations in Karnataka. So far as Kalaburagi Municipal Corporation, the allotment of offices of Mayor and Deputy Mayor as per the reservations for respective terms were as follows:
Date of Term Mayor Deputy Mayor
Notification
01.01.2018 XX Term Gen(Women) Gen(Women)
03.09.2019 XXI Term Scheduled General
caste
26.12.2019 XXII Term Scheduled Backward
caste caste-A
11.02.2021 XXIII Term Gen(Women) Backward
caste-B
7. Though the notifications of 2018, 2019 and 2021 were issued allotting the posts of Mayor and Deputy Mayor to certain categories, such reservations so far as Kalaburagi, W.A.No. 200028/2022 C/W
-11- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 Vijayapura and Bidar Municipal Corporations became the subject matter of W.P.No.204314/2018 and connected matters. Due to such litigation, the elections of Mayor and Deputy Mayor of Kalaburagi Municipal Corporations were not conducted for the said terms.
8. Ultimately as per the notification dated 11.02.2021 the Regional Commissioner of Kalaburagi region issued notice dated 06.11.2021 convening the meeting on 20.11.2021 at 12.30 hours. In the said notice, it was notified that the post of Mayor and Deputy Mayor for 23rd term is reserved for General Women and Backward Class-B. By the notice dated 16.11.2021 Regional Commissioner postponed the election of Mayor and Deputy Mayor to be held on 20.11.2021 on the ground that the Election Commission of India has notified the elections of the Members Of Legislative Council.
9. On 27.01.2022 the Regional Commissioner issued another notice convening the meeting on 05.02.2022 at 12.30 hours for electing Mayor and Deputy Mayor to Kalaburagi Muncipal Corporation. In that notice, the Regional W.A.No. 200028/2022 C/W
-12- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 Commissioner said that the election was going to be held for XXI Term as per the notification dated 03.09.2018 and the posts of Mayor and Deputy Mayor were reserved for candidates of Scheduled caste and general category.
10. The first respondent in W.A.No.200028/2022 by name Yellappa filed W.P.No.202488/2021 before the learned Single Judge for quashing of the notification dated 11.02.2021 so far the same relates to Mayor and Deputy Mayor of Kalaburagi Municipal Corporation to the category of General Women and Backward Class B and writ of mandamus against the appellants in W.A.No.200028/2022 to hold elections for Mayor and Deputy Mayor and member of Standing Committees as per the guidelines under Government Order dated 27.08.2014. He contended that the notification dated 11.02.2021 deprives the post to Scheduled Tribe category to which he belongs to and that amounts to discrimination.
11. As per Section 7(1) of the KMC Act, the persons competent to vote in the election to the Mayor and Deputy Mayor are elected Councillors, Members of Legislative Assembly and Members of Parliament representing the W.A.No. 200028/2022 C/W
-13- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 Constituency in the said municipal area and the Members of Legislative Council. As on the notification dated 06.11.2021, there were 55 elected Councilors and 8 members of Lokasabha, Rajyasabha, Vidhanasabha and Vidhana Parishat. They were the voters for electing Mayor and Deputy Mayor.
12. After postponement of the election, the appellants in W.A.No.200037/2022 who were the members of Legislative Council filed applications before the Electoral Registration Officer/Assistant Commissioner Kalaburagi for inclusion of their names in electoral roll of Kalaburagi Assembly Constituency. On 08.11.2021 the petitioners in W.P.Nos.200346-347/2022 filed objections to those applications. The Assistant Commissioner by order dated 27.12.2021 after holding the enquiry allowed the applications rejecting the objections and included the appellants in the Electoral roll of Kalaburagi city. Consequently, the Regional Commissioner included their names at Sl.Nos.64 to 68 as the voters to the election of Mayor and Deputy Mayor and the same was enclosed to the notice dated 27.01.2022.
W.A.No. 200028/2022 C/W
-14- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
13. W.P.Nos.200346-47/2022 were filed for quashing of the notice dated 27.01.2022 issued by the Regional Commissioner and mandamus against the State and the Regional Commissioner to continue the election of Mayor and Deputy Mayor as per the earlier calendar of events dated 06.11.2021. It was contended that those 5 persons were neither residents of Kalaburagi nor representing Kalaburagi in the Assembly and they were included in the voters list with the oblique motive that the members of the Indian National Congress party are not elected as the Mayor and Deputy Mayor. It was also contended that the roster was changed illegally. The learned Single Judge connected W.P.No.202488/2021 with W.P.Nos.200346-347/2022 and took up them for disposal together.
14. The learned Single Judge formulated following two points for consideration:
i) Whether the writ petitions are maintainable under Article 227 of the Constitution of India ?;
ii) Whether the impugned notification dated 27.01.2022 is as per Section 10 of the KMC Act?
W.A.No. 200028/2022 C/W
-15- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022
15. The learned Single Judge referring to several judgments held that the impugned notifications are subject to judicial review. The learned Single Judge further held that though inclusion of 5 other members in the voters list is appealable, since those respective petitioners have not filed any appeal, the writ petition is maintainable.
16. The learned Single Judge by the impugned common judgment allowed the writ petitions and quashed the entire notification dated 11.02.2021 issued by the Government and notice/notification dated 27.01.2022 issued by the Regional Commissioner convening the meeting on 05.02.2022. The learned Single Judge further directed the Regional Commissioner to allot the office of the Deputy Mayor to Kalaburagi Municipal Corporation in terms of the guidelines issued by the State Government as per Section 10(1A) of the KMC Act and to continue the election of Mayor and Deputy Mayor from the stage it was interrupted as per the voters list dated 06.11.2021.
W.A.No. 200028/2022 C/W
-16- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
17. For the purpose of convenience, hence forth the writ petitioners will be referred to as 'Councillors'. Challenging the order of the learned Single Judge in W.P.No.202488/2021 the State has preferred W.A.No.200028/2022. Similarly challenging the order in 200346-47/2022 the State has preferred W.A.Nos.200185-200186/2022. Challenging the order in W.P.No.200347/2022 the Members of Legislative Council ('MLC's for short) have filed W.A.No.200037/2022. It is material to note that W.A.No.200346/2022 the petitioner therein though challenged the inclusion of the names of 5 other Members of Legislative Council had not impleaded them as party respondents in that case. Therefore, they have not preferred any appeal against the order in that writ petition. Submissions of Sri Prabhuling Navadgi, Learned Advocate General:
18. Though the notification dated 03.09.2018, 26.12.2019 and 11.02.2021 were issued allotting the posts of Mayor and Deputy Mayor to the candidates of certain categories from XXI Term to XXIII Term, admittedly due to the circumstances which were beyond the control of the State W.A.No. 200028/2022 C/W
-17- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 i.e., on account of the pending litigations, the elections to the Posts of Mayor and Deputy Mayor were not held to Kalaburagi Municipal Corporation. In the light of that, the reservations allotted to the posts of Mayor and Deputy Mayor for the XXI term of Kalaburagi Municipal Corporation were not achieved. Therefore, that was to be carried forward. The Regional Commissioner without properly understanding that, under the notice dated 06.11.2021 had notified the reservation as per the XXIII Term. In similar situation, the Regional Commissioners of some other Corporations also sought the clarification from the Government. The Government by letter No.NAE 206 MLR 2021(e) dated 25.01.2022 addressed to Commissioner, Hubli-Dharwad, Belgaum and Kalaburagi Corporations clarified that the election to the Mayor and Deputy Mayor of those corporations was held up to 2018 as per the reservation provided for the XX term. In the year 2019 and 2020, in view of the pending litigations elections were not conducted. It was further said that since the election to those three Corporations as per the reservation for the XXI, XXII and XXIII terms was not conducted, the elections have to be conducted as per the reservation provided to them in the W.A.No. 200028/2022 C/W
-18- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 XXI term. Therefore, the XXI term was carried forward. Though the same was clarified, the learned Single Judge without even referring to that held that the elections were not held in accordance with Section 10 of the KMC Act which is unsustainable. Similarly the candidates at Sl.Nos.64 to 68 in the voters list were included in accordance with law and the said order of Assistant Commissioner was appealable. Admittedly some persons had already filed appeal against such orders. In view of such effective, alternative remedy the writ petition was not maintainable. It is settled law that the Courts shall not interfere in the election process once the notification is issued. In quashing the notifications and directing to continue the election from 06.11.2021, the learned Single Judge has acted contrary to the judgments of the Supreme Court. Admittedly after 06.11.2021, the terms of some of the MLCs were over and new MLCs were elected. Therefore, holding the elections as per voters list on 06.11.2021 amounts to retaining the ineligible persons and dropping the eligible persons to vote.
W.A.No. 200028/2022 C/W
-19- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
19. In support of his submissions he relies on the following judgments:
i) Shaji K.Joseph vs. Viswanath and others 1
ii) West Bengal State Election Commission and others vs. Communist Party of India (Marxist) and others2
iii) State of Goa and another vs. Fouziya Imtiyaz Shaikh and another3 Submissions of Sri Ameet Kumar Deshpande,learned senior counsel for Sri Gourish S.Khashampur, learned counsel on record for the appellant in W.A.No.200028/2022:
20. He reiterated the contentions raised by the learned Advocate General with regard to the maintainability of the writ petitions and failure of the learned Single Judge to refer to the documents and the facts submitted by them.
21. In support of his submissions he relies on the judgment of the Hon'ble Supreme Court in P.T.Rajan vs. TPM Saher4.
1 (2016)4 SCC 429 2 (2018)18 SCC 141 3 (2021)8 SCC 401 4 (2003)8 SCC 498 W.A.No. 200028/2022 C/W
-20- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 Submissions of Sri A.M.Nagral and Sri Mahadev S.Patil, learned counsel for respondents/Elected Councillors
22. Once the process of election is commenced, that shall not be interrupted. In these cases the Government and the Regional Commissioner on issuing the notification dated 06.11.2021 changed the reservations to the post of Mayor and Deputy Mayor as well as the list of voters contrary to the judgment of the Hon'ble Supreme Court in S.T.Muthuswamy vs.K.Natarajan and others5. Therefore, learned Single Judge was justified in quashing the notification dated 11.02.2021, the notification of the Regional Commissioner dated 27.01.2022 and directing them to continue the process of election from the stage it was interrupted. The said order warrants no interference.
23. In support of their submissions, they rely on the following judgments:
i) K. Channaiah & others vs. State of Karnataka & ors6 5 (1988)1 SCC 572 6 2000 SCC Online Kar 379 W.A.No. 200028/2022 C/W
-21- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022
ii) Manohar Parappa Rakkasagi vs. State of Karnataka and ors7
iii) Lakshmikanth K. vs. The State of Karnataka and ors8
24. On consideration of rival submissions and material on record the following two questions arise for consideration:
(i) Whether the learned Single Judge was justified in quashing the notification dated 11.02.2021 issued by the Government regarding reservation to the post of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation for the XXIII term?
(ii) Whether the learned Single Judge was justified in quashing the notification dated 27.01.2022 issued by the Regional Commissioner for holding election to the post of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation?
Reg. Reservation of posts under Notification dated 11.02.2021:
25. Article 243T of the Constitution of India provides for reserving seat of Councilors, Mayors and Deputy Mayors, Chairpersons for the Scheduled Castes, the Scheduled Tribes 7 WA No.101175/2016 DD 22.11.2016 8 W.P.No.4457/2022 (LB ELE) DD 18.04.2022 W.A.No. 200028/2022 C/W
-22- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 and Women in every Municipal Corporation/Municipality.
Article 243T reads as follows:
"243T. Reservation of seats.--(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality 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 that Municipality 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 that area and such seats may be allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens."
26. In view of the powers conferred under Article 243T(4), T(6) of the Constitution, the State Government has W.A.No. 200028/2022 C/W
-23- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 made provision for reservation for the post of Mayors and Deputy Mayors under Section 10(1A) of the KMC Act. Section 10(1A) reads as follows:
"10. Mayor and Deputy Mayor.-
(1)1[Subject to the provisions of sub-section (1A) the Corporation]1 shall, at its first meeting after a general election of councillors and at its first meeting in the same month in each year thereafter, elect,-
(a) one of its concillors 2[referred to in clause (a) of sub-section (1) of section 7]2 to be the Mayor, and
(b) one other councillor 2[referred to in clause
(a) of sub-election (1) of section 7] 2 to be the Deputy Mayor.
1. Substituted by Act 35 of 1994 w.e.f.
1.6.1994.
2. Inserted by Act 35 of 1994 w.e.f. 1.6.1994. 1 [(1A) There shall be reserved by the Government in the prescribed manner,-
(a) such number of officers of Mayor and Deputy Mayor in the State, for the persons belonging to the Scheduled Castes and Scheduled Tribes and the number of such offices shall bear as nearly as may be, the same proportion to the total number of offices in the State as the population of Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State;
(b) such number of offices of Mayor and Deputy Mayor in the State which shall as nearly as may be, one third of the total number of offices of the Mayor and Deputy Mayor in the State for the persons belonging to the Backward Classes;
1
[Provided that out of the offices reserved under this clause eighty percent of the total number W.A.No. 200028/2022 C/W
-24- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 of such offices shall be reserved for the persons falling under category "A" and the remaining twenty percent of the offices shall be reserved for the persons falling under category "B".
Provided further that if no person falling under category "A" is available, the offices reserved for that category shall also be filled by the persons falling under category "B" and vice-versa.]1 2 [Provided also that the number of offices of Mayor and Deputy Mayor reserved for the backward classes under this clause shall be so determined that the total number of offices of Mayor and Deputy Mayor reserved for the scheduled castes and the scheduled tribes under clause (a) and the backward classes under this clause shall not exceed fifty percent of the total number of offices of Mayor and 2 Deputy Mayor of the City Corporations in the State.]
1. Inserted by Act 25 of 1995 w.e.f. 26.9..1995.
2. Substituted by Act 32 of 2012 w.e.f. 30.8..2012.
(c)2[not more than fifty percent of the total number of offices of Mayor and Deputy Mayor]2 in the State from each of the categories reserved for persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and those which are non-reserved, for women:
Provided that the offices reserved under this sub-section shall be allotted by rotation in the prescribed manner."
27. Reading of above provision shows that such reservation shall not exceed 50% of total number of offices of Mayors and Deputy Mayors in the State. Section 71 of the KMC Act provides for the jurisdictional Regional Commissioner W.A.No. 200028/2022 C/W
-25- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 conducting the first meeting of the Corporation after the General Election of the Councillors.
28. Section 421 of the KMC Act empowers the State Government to make rules by notification to carry out the purpose of the Act. Acting under Section 421 of the KMC Act, the State Government notified the Karnataka Municipal Corporations (Elections and Miscellaneous Provisions) Rules, 1977. On framing KMC (Election) Rules, 1979, the Karnataka Municipal Corporations (Elections and Miscellaneous Provisions) Rules, 1977 were repealed by Rule 91 of KMC Election Rules. KMC Election Rules were amended from time to time. Rules 71 to 76 of KMC Election Rules deal with the procedure for holding the elections for Mayor, Deputy Mayors and the Members of the Standing Committee. The said Rules empower the jurisdictional Regional Commissioner to conduct the Election of Mayors, Deputy Mayors in the first or any subsequent meeting of the Corporation.
29. From 1995 till the year 2012, the offices of Mayor, Deputy Mayor in the City Corporation were reserved on the basis of the Karnataka Municipal Corporation (Elections) Rules, W.A.No. 200028/2022 C/W
-26- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 1995 and 1997. This Court in W.P.No.39675/2004 and connected matters by order dated 08.11.2004 held that the reservation by rotation shall be clear, definitely ascertainable and fixed one. In view of such order, the Government issued the Guidelines for reservation under Government Order No.UDD 92 MLR 2014 Bangalore dated 27.08.2014. Guideline Nos.(i) to (iv) and (ix) which are relevant for the purpose of this case read as follows:
"(i) Such numbers of offices of Mayors/Deputy Mayors in the City Corporations shall be reserved for SC/ST.
Backward Class (A & B) and Women as per Rule 73-A of the Karnataka Municipal Corporations (Election) Rules, 1979.
(iv) The reservation of the offices of Mayors/ Deputy Mayors in City Corporations in favour of SC/ST candidates in the State shall be determined by the Govemment based on the highest percentage of SC/ST population with reference to the total population of the City concerned as per Rule 73-A (2) of Kamataka Municipal Corporation (Election) Rules, 1979. The ULBs shall be arranged on the basis of decreasing percentage of population of SC/ST as the case may be while making such allotment.
W.A.No. 200028/2022 C/W
-27- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
(ix) The sequence in the process of reservation of offices of Mayors and Deputy Mayors in City Corporations shall be as under;
a) Every Corporation shall be arranged in a decreasing order of percentage of SC population. Thereafter Reservation for the Scheduled Caste shall be done on rotation based upon declining population of Scheduled Castes.
b) A similar exercise shall be followed for ST category i.e. every Corporation shall be arranged in a decreasing order percentage of ST population and thereafter reservation for ST shall be done on the basis of rotation.
c) Thereafter a combined list of all Corporations in alphabetical order in English language shall be prepared indicating the points fixed for SCW/ST/SC/ STW as per (a) & (b) above. Next allotment of seats for other categories shall he as per following cycle BCAW-> G ->BCBW - >G ->BCA ->GW->BCB.
d) The proceedings shall be drawn up indicating the reasons for reservation of seats in respect of each category of the offices of Mayor and Deputy Mayor of City Corporation wise.
30. Based on the above Guidelines, the State has prepared a statement indicating the rotation of the roster to the offices of the Mayor, Deputy Mayor of the Municipal W.A.No. 200028/2022 C/W
-28- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 Corporations based on the population data as per 2011 census. Upto 2017/XX Term, the quota of the roster was achieved. The trouble started in 2018-2019/XXI Term onwards. The quota fixed for 2018-2019 and 2020-2021 was as follows:
Date of Term Mayor Deputy Mayor
Notification
01.01.2018 XX Term Gen(Women) Gen(Women)
03.09.2019 XXI Term Scheduled General
caste
26.12.2019 XXII Term Scheduled Backward
caste class-A
11.02.2021 XXIII Term Gen(Women) Backward
class-B
31. Admittedly, due to the pendency of
W.P.No.204314/2018 and connected matters from XXI Term onwards the Elections to the posts of Mayors and Deputy Mayors were not held. Therefore, the roster of XXI Term was carried forward. The writ petitioners/Yellappa and Heena Begum do not dispute the reservation under the aforesaid notifications dated 03.09.2018 and 26.12.2019. It is not even their case that those notifications were contrary to the 2014 Guidelines. Their only grievance was that they were not given representation in the notification dated 11.02.2021 issued by W.A.No. 200028/2022 C/W
-29- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 the jurisdictional Regional Commissioner. It is their further contention that the notification dated 06.11.2021 and 27.01.2022 vary from each other so far as reservation, therefore the notification dated 27.01.2022 is illegal.
32. The writ petitioners also do not dispute that the Election Commission of India notified the Elections to the post of Members of Legislative Council in Karnataka. Therefore no malafides can be attached to the notification dated 16.11.2021 issued by the Regional Commissioner postponing the Election scheduled to be held on 20.11.2021 under the notice dated 06.11.2021.
33. It is the case of the State that the notification dated 06.11.2021 was issued XXIII Term under misconception and without noticing that the reservations under the notifications dated 03.09.2018, 26.12.2019 were not achieved. It is the contention of the appellants that in view of the clarification given by the State under the letter dated 25.01.2022 to the Regional Commissioners regarding non achievement of XXI Term's quota, the notification dated 27.01.2022 rectifying the error was issued.
W.A.No. 200028/2022 C/W
-30- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
34. The writ petitioners also do not dispute that from XXI Term onwards the quota was not achieved. They did not even challenge 2014 Guidelines or the notifications dated 03.09.2018 and 26.12.2019. They do not even demonstrate in the petition how those Government notifications and the Regional Commissioner's notification dated 27.01.2022 defeat 2014 Guidelines or Article 243T of the Constitution or Section 10(1A) of the KMC Act.
35. The notification dated 11.02.2021 not only related to Kalaburagi Municipal Corporation, but that covered the Corporations of Bellari, Belagavi, Davanagere, Hubballi, Dharwad, Mangalore, Mysore, Shivamoga, Tumkur and Vijayapura. The petitioners in W.P.Nos.200346-347 of 2022 had not even sought quashing of the notification dated 11.02.2021. The petitioner in W.P.No.202488/2022 had sought quashing of the notification dated 11.02.2021 only so far it relates to Kalaburagi Municipal Corporation. It is submitted that the Elections to the other Corporations mentioned in the notification dated 11.02.2021 were held. Therefore the notification dated 11.02.2021 has spent out its W.A.No. 200028/2022 C/W
-31- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 life so far it relates to the other Municipal Corporations mentioned therein. However, the learned Single Judge quashed the entire notification which affects the Elections to the other Municipal Corporations mentioned therein. That itself shows non-application of mind of the learned Single Judge.
36. Apart from the aforesaid facts, the roster of each Municipal Corporation for each term has been so arranged that such reservation does not exceed 50% for the entire State. Any meddling with the roster so fixed imbalances that 50% principle. The learned Single Judge did not notice that aspect also.
37. The major part of the impugned order is devoted to discuss various judgments of the Hon'ble Supreme Court and this Court. Even in S.T.Muthuswamy's case referred to supra relied on by the learned Single Judge, the Hon'ble Supreme Court in para 14 refers to a Full Bench judgment wherein it was held as follows:
"14. In the ultimate analysis, the Full Bench laid down:
"12. There is no constitutional bar to the excise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like. However, as it is W.A.No. 200028/2022 C/W
-32- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 stated: though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases."
(emphasis supplied)
38. Ultimately in para 15 of the judgment, the Hon'ble Supreme Court held that it accepts the statutory principle that writ petition should not be lightly entertained in such class of cases. In the other judgments relied on by the learned Single Judge himself it was held that non interference of the Court in the process of election is a rule and interference is only an exception.
39. The learned Single Judge holds that before changing the quota under the Regional Commissioner's notification dated 27.01.2022 from the notification dated W.A.No. 200028/2022 C/W
-33- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 06.11.2021 the same should have been notified to the public and objections should have been called for. As already pointed out under the notification dated 27.01.2022 the roster was not changed, but only XXI Term's roster was carried forward. Therefore there was no need to notify the same to the public and call for the objections.
40. The learned Single Judge without considering all the aforesaid factual aspects jumped to the conclusion that the notifications dated 11.02.2021 and 27.01.2022 are violative of Article 243T of the Constitution and Section 10(1A) of the KMC Act. The records show that the learned Single Judge disposed of the matters when the same were listed in orders and not even at the stage of preliminary hearing. Probably, such haste led the learned Single Judge's failure to consider the material facts of the case.
41. The larger Bench of the Hon'ble Supreme Court in the latest judgment in Fouziya Imtiaz Shaikh's case referred to supra referring to Article 243ZA of the Constitution has held that the writ Courts must adopt a hands off policy when the election process is on, unless interfering with such order W.A.No. 200028/2022 C/W
-34- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 absolves and facilitates the progress of election. It was also held that no election to any municipality can be called in question, except by election petition. In para 68 of the said judgment the Guidelines were laid down. Paras 68(5) to (9) of the said judgment are relevant for the purpose of this case which read as follows:
68.5. Judicial review of a State Election Commission's order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.
68.6. Article 243-ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243-T, which deals with reservation of seats.
68.7. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-
W.A.No. 200028/2022 C/W
-35- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the statute concerned does not give such orders the status of a statutory provision.
68.8. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies .
68.9. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.
(Emphasis supplied)
42. The larger Bench of the Supreme Court in para 29 of the West Bengal State Election Commission's case referred to supra while emphasizing that there shall not be any interference in the election process held as follows:
29. There is merit in the submission that the discipline which is mandated by the provisions of the W.A.No. 200028/2022 C/W
-36- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 Constitution and enforced by the enabling state law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law, namely through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence. This principle has been consistently adhered to in decisions of this Court.
In Boddula Krishnaiah (supra), a three Judge bench, adverted to the decisions of the Constitution Bench in NP Ponnuswami v Returning Officer, Namakkal Constituency and in Lakshmi Charan Sen v AKM Hassan Uzzaman. After referring to Ponnuswamy, it was observed:(Boddula Krishnaiah,SCC pp.419-20, para8) "8. In N.P Ponnuswamy v Returning Officer, Namakkal Constituency a Constitution Bench of this Court had held that having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted. In conformity with the principle, the scheme of the election law is that no significance should be attached to anything which does not affect the 'election'; and if any irregularities are committed, while it is in progress W.A.No. 200028/2022 C/W
-37- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the 'election'; and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress." The binding principle must be followed.
(Emphasis supplied)
43. In the light of the aforesaid judgments and the facts and circumstances discussed above, the other judgments relied on by the Counsel for the Councillors cannot be justifiably applied to the facts and circumstances. Reg. Electoral Roll:
44. The petitioners in W.P.Nos.200346-347/2022 challenged the notification dated 27.01.2022 on the ground that the inclusion of the names of the appellants in W.A.No.200037/2022 in the Electoral Roll. When the Regional Commissioner issued first notification dated 06.11.2021 the names of the said appellants were not included in the Electoral Roll. The elections of Mayor and Deputy Mayor were postponed under the notification dated 16.11.2021 on the W.A.No. 200028/2022 C/W
-38- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 ground that Election Commission of India has scheduled the election of Members of Legislative Council.
45. On 14.12.2021 the appellants in W.A.No.200037/2022 were elected as new members of Legislative Council. On 08.11.2021 the said appellants and four others filed application before the Electoral Registration Officer/Assistant Commissioner, Kalaburagi. 11 persons objected the application of the said appellants. Out of them 4 were held to be eligible objectors and were heard by the Electoral Registration Officer. Rejecting their objections the aforesaid appellants' names were included in the Electoral list.
46. Though W.P.Nos.200346-200347/2022 were filed for quashing the notification dated 27.01.2022 on the ground of inclusion of the new electors, in W.P.No.200346/2022 the said electors were not arrayed as parties. On that count itself the said prayer in the writ petition should have been dismissed. In W.P.No.200347/2022 though the newly included electors were made parties, only the Electoral Roll Annexure-G was sought to be quashed. The orders of the Electoral Officer dated 27.12.2021 for including the names of the said five W.A.No. 200028/2022 C/W
-39- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 persons were not sought to be quashed. It is material to note that Annexure-G included 55 Councillors and 7 Members of the Parliament and Council of States and members of Legislative Assembly and members of Legislative Council. The learned Single Judge by the impugned order quashed Annexure-G the entire Electoral list. Thereby the Councillors, Members of Parliament and State Legislative Council were also removed from the list. That itself shows the non-application of the mind.
47. The order of the Electoral Registration Officer passed under Rule 20 of the Registration of the Electors Rules, 1960 is appeable under Rule 23 of the said Rules. Section 7 of KMC Act which speaks of Constitution of Corporation reads as follows:
"7. Constitution of the Corporation .- (1) The Corporation shall consist of,-
(a) such number of elected councillors not being less than thirty and not more than two hundred as the Government may, by notification, determine"; and
(b) not exceeding ten percent of the total number of Councillors in the case of Bruhat Bangalore Mahanagara Palike and not more than five persons in the case of other City Corporations nominated by the Government from amongst the residents of the city,-
W.A.No. 200028/2022 C/W
-40- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022
(i) who are persons having special knowledge and experience in municipal administration or matters relating to health, town planning or education; or
(ii) who are social workers;
(c) the members of the Houses of People and the members of the State Legislative Assembly representing a part or whole of the city whose constituencies lie within the city
(d) the members of the Council of State and State Legislative Council who are registered as electors within the city:
Provided that the persons referred to in clause (b) shall not have right to vote in the meetings of the Corporation."
48. The above provisions go to show that the members of Council of States and State Legislative council are also part of the Corporation. The rider of the elected representatives having constituency in the city as per Section 7(c) applies only to the members of Legislative Assembly and Members of Lokasabha. Such rider is not there in Section 7(1)(d) with regard to the members of Council of State and State Legislative Council. Similarly the proviso to Section 7(1) bars the right to vote in the meetings of the Corporation only for the members covered in clause 7(1)(b) i.e., the nominated persons. Even the petitioners in W.P.No.200346-347/2022 did W.A.No. 200028/2022 C/W
-41- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 not dispute that position. But, their only contention is that the said newly included electors were not the residents of Kalaburagi city and they had manipulated the rent agreements etc for the purpose of their enrolment and consequently to see that the members of rival political party are not elected as Mayor and Deputy Mayor. Whether those documents were genuine or not and whether they were ordinary residents of Kalaburagi city or not were the disputed questions of fact. Such questions cannot be considered in the writ jurisdiction. That was to be decided by the appellate forum under Rule 23 of the Registration of Electors Rules, 1960.
49. By the time the writ petitions were filed, the appeals were already pending before the Appellate Authority under Rule 23. It was faintly contended that the Commissioner/Appellate authority had not decided the appeal. Again there was no material to show that such appeal was pursued by the appellants therein. If the appeal was not decided, it was open to the said appellants to seek writ of mandamus against the appellate authority.
W.A.No. 200028/2022 C/W
-42- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
50. Further, the inclusion in the voters list was made before the issue of notification dated 27.01.2022 i.e., before the commencement of the process of election. The learned Single Judge quashed only the voters list and not the orders of the Electoral Registration Officer, thereby the order of the Registration Officer still remained operative.
51. In the light of the above said facts and circumstances, in quashing the notice dated 27.01.2022 and the voters list the learned Single Judge acted contrary to the judgments of the Hon'ble Supreme Court in Fouzia Imtiaz Shaikh's case and West Bengal Election Commission's case.
52. For the aforesaid reasons the appeals deserve to be allowed. Hence the following:
ORDER I) W.A.No.200028/2022, W.A.No.200037/2022, W.A.No.200185/2022 and W.A.No.200186/2022 are hereby allowed with costs.
W.A.No. 200028/2022 C/W
-43- W.A.No.200037/2022, W.A.No.200185/2022, W.A.No.200186/2022 II) The impugned order of the learned Single Judge dated 04.02.2022 in W.P.No.202488/2021 and W.P.Nos.200346-347/2022 is hereby set aside. III) W.P.No.202488/2021 and W.P.Nos.200346- 347/2022 are hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE AKC/KSR