Karnataka High Court
Smt. Heena Begum W/O Abdul Raheem vs The State Of Karnataka And Ors on 4 February, 2022
R
IN THE HIGH COURT OF KARNARAKA
KALABURAGI BENCH
DATED THIS THE 04TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.202488 OF 2021
AND
WRIT PETITIONS NO.200346 & 200347 OF 2022
IN WP NO.202488 OF 2021
Between:
Yellappa
S/o Shivasharanappa Naikodi
Age 58 years
Occ: Corporator
City Corporation, Kalaburagi
R/o Ekalvya Vidyalaya School
Shivashakti Nagar
Taj Sultanpur Road
Kalaburagi - 585 104
...Petitioner
(by Sri Pramod N. Khatavi, Senior Advocate for
Sri N.B. Diwanji, Advocate)
And:
1. The Chief Secretary
Government of Karnataka
Vidhana Soudha
Dr. Ambedkar Veedhi
Bengaluru 560 001
2. The State of Karnataka
2
Department of Urban Development
Vidhana Soudha
Dr. Ambedkar Veedhi
Bengaluru 560001
By its Principal Secretary
...Respondents
(by Sri Pabhuling Navadagi, AG
a/w Sri Viranagounda Biradar, AGA)
This Writ Petition is filed under Article 226 of Constitution
of India praying to issue a writ, order or direction in the nature
of a writ of certiorari quashing notification bearing No.UDD 24
MLR 2021 dated 11.02.2021 (Annexure-A) insofar as it relates to
the allotment of posts of Mayor and Deputy Mayor in Kalaburagi
Municipal Corporation to the category of General (Woman) and
BCB; and etc.
IN WP NO.200346 OF 2022
Between:
Smt. Heena Begum
W/o Abdul Raheem
Age 27 years
Occ: Corporator
Ward No.10, Kalaburagi Municipal Corporation
R/o Shaik Roja, Aland Road
Kalaburagi 585 102
...Petitioner
(by Sri S.M. Chandrashekar, Senior Advocate
for Sri A.S. Nagaral, Advocate)
And:
1. The State of Karnataka
Urban Development Department
Vidhana Soudha
Bangalore - 01
3
Represented by it 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
...Respondents
(by Sri Prabhuling Navadagi, AG
a/w Sri Viranagouda Biradar, AGA for R1 to R4)
This writ petition is filed under Article 226 of the
Constitution of India praying to quash the order dated
27.01.2022 bearing PRA/AA/KA/CHUNAVANE/29/2021-22 issued
by the second respondent produced at Annexure-F; and etc.
IN WP NO.200347 OF 2022
Between:
1. Shaik Ajmal Ahemed Afzal Gola
Age about 39 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
Age about 31 years
Occ: Corporator
Ward No.44, Kalaburagi Municipal Corporation
4
R/o H.No.LIG 28, MSK Mill road
Near Hanuman Temple, Shanti nagar
Kalaburagi 585 103
3. Lata Ravindra Kumar
Age about 45 years
Occ: Corporator
Ward No.49, Kalaburagi Municipal Corporation
R/o H No.1-933, Adarsh Marg
Old Jewargi Road, Vishal Nagar
4th Cross, Tarfile
Kalaburagi 585 102
4. Smt. Anumapa
W/o Ramesh Kamaknoor
Age 36 years
Occ: Corporator
Ward No.22, Kalaburagi Municipal Corporation
R/o Chodeshwari Colony
Brhmpur
Kalaburagi 585 102
...Petitioners
(by Sri A.S. Ponnanna, Senior Advocate for
Sri Mahadev S. Patil, Advocate)
And:
1. The State of Karnataka
Urban Development Department
Vidhana Soudha
Bangalore - 560 001
By its Secretary
2. The Regional Commissioner
Kalaburagi Division
Kalaburagi 585 102
3. The Commissioner
City Municipal Corporation
5
Kalaburagi 585 102
4. The Assistant Commissioner
Kalaburagi 585 102
5. Muniraju Gowda PM
Age 43 years
Occ. Member of Legislative Council
R/o No.27/1, Tulasi Vasanthpura Main Road
Konanakunte Cross, Doddakallasanda
Bangalore 560062
6. Lehar Singh Siroya
Age 73 years
Occ: Member of Legislative Council
R/o No.145, 9th cross, 3rd Main
RMV 2nd Stage, HIG Colony, VTC
Bangalore North 560 094
7. Bharati Shetti
Age 60 years
Occ: Member of Legislative Council
R/o F-4, 2nd Floor, "Sai Krishna"
Canara Bank Colony
Bangalore South 560 061
8. Savadi Lakshman
S/o Sangappa
Age 61 years
Occ: Member of Legislative Council
R/o. No.985, Opp. SMS College
Satti Road
Athani
Belgaum 518 123
9. Raghunath Rao Malkapure
Age 62 years
Occ: Member of Legislative Council
R/o No.19-1-166
6
Shivanagar
Bidar - 585 401
...Respondents
(by Sri Prabhuling K. Navadagi, AG a/w
Sri Viranagouda Biradar, AGA for R1, R2 and R4)
Sri Ashok Haranahalli, Sr. Advocate
for Gourish S. Khashampur, Advocate for C/R5, R7 and R9)
This Writ Petition is filed under Article 226 and 227 of
Constitution of India praying to quash the inclusion of names of
respondents No.5 to 9 in the voter list dated 27.01.2022 at
Sl.No.64 to 68 produced at Annexure-G and H; and etc.
These petitions coming on for orders, this day, the Court
made the following:
ORDER
"Any decision sought and rendered will not amount to 'calling in question an election' if it subserves the progress of the election and facilitates the completion of the election."
The Hon'ble Supreme Court speaking Hon'ble Justice R.C. Lahoti, in the case of ELECTION COMMISSION OF INDIA v. ASHOK KUMAR AND OTHERS reported in (2000)8 SCC 216, has, at paragraphs 16 and 28 of the judgment, observed thus:
"16. This Court observed that the jurisdiction of courts is carved out of sovereign power of the State. People of free India are the sovereign and the exercise of judicial power is articulated in the provisions of the Constitution to be exercised by courts under the 7 Constitution and the laws thereunder. It cannot be confined to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where Statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience.
17 to 27. xxx xxx xxx
28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over- enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes. "
2. In these writ petitions, the petitioners have challenged the Notification No.PRA/AA/KA/CHUNAVANE/29/ 2021-2022 dated 27th January, 2022 reserving of posts for Office of Mayor and Deputy Mayor in Kalaburagi Municipal Corporation, 8 to the Scheduled Caste and General categories respectively, and also challenged the inclusion of additional names in the voters list, dated 27th January, 2022. Since common issues are involved in all these writ petitions, the same are clubbed, heard together and are disposed of by this common order. FACTS OF THE CASE:
3. It is the case of the petitioner in WP No.202488 of 2021 that, the petitioner is an elected Corporator from Ward No.53 of Kalaburagi. It is stated that the Office of Mayor and Deputy Mayor of Municipal Corporation in the State of Karnataka have to be filled up as per the provisions of Karnataka Municipal Corporations Act, 1976 (for short, hereinafter referred to as the 'Act') and the Karnataka Municipal Corporations (Election) (Amendment) Rules, 2014 (for short, hereinafter referred to as the 'Rules'). Section 10 of the Act provides for reservation of Offices of Mayor and Deputy Mayor in the State of Karnataka. Proviso to Section 10 of the Act, contemplates that the posts to the aforementioned Offices shall be allotted by rotation in the prescribed manner as per Article 243-T of the Constitution of 9 India. To facilitate reservation to various categories, the Government has issued notification dated 26th December, 2019 under Rule 73-A of the Rules. As per the said Notification, the Office of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation, is reserved to Scheduled Tribe and Backward Class- A category. Thereafter, the respondent-State issued another Notification dated 11th February, 2021, reserving the posts of Office of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation as per the guidelines under Government Order dated 21st January, 2021, resulting in reservation of posts of Mayor and Deputy Mayor to General (woman) and Backward Class-B categories, respectively. It is the case of the petitioner in Writ Petition No.202488 of 2021 that, no post has been reserved for the candidate belonging to Scheduled Tribe in Kalaburagi Municipal Corporation till today and in view of the same, the Scheduled Tribe community has been discriminated while following the rotation policy by the respondent-State and as such, the petitioner has challenged the Notification dated 11 th February, 2021 in the said writ petition, inter alia seeking 10 quashing of the Notification dated 27th January, 2022 issued by the Respondent-State.
4. Insofar as Writ Petitions No.200346 and 200347 of 2022 are concerned, the petitioners claim to be Corporators of Kalaburagi Municipal Corporation. The issue raised in these writ petitions are identical to the one raised in Writ Petition No.202488 of 2021. The petitioners state that the elections were held to the Kalaburagi Municipal Corporation on 06 th September, 2021, wherein twenty three Corporators are elected from Bharatiya Janata Party; twenty seven Corporators from Indian National Congress; four Corporators from Janata Dal (S); and one Corporator as an independent candidate. It is further stated that the reservation of posts for Mayor and Deputy Mayor has been modified frequently from 2018 to 2022 and the Regional Commissioner, Kalaburagi has issued guidelines for the Election Meeting on 06th November, 2021 and calendar of events was issued to conduct election on 20 th November, 2021 and final list of voters has also been finalised. As per the said list, there are 55 Corporators and eight independent voters, comprising 11 Member of Parliament, Members of Legislative Assembly and Members of Legislative Council of Kalaburagi, whereby totally 63 voters are eligible to cast vote for the post of Mayor and Deputy Mayor. Thereafter, the said election was postponed, consequently, reservation was also changed accordingly. It is the case of the petitioners that, inclusion of additional five Members of Legislative Council in the voter list at Sl.No.64 to 68 in the Notification dated 05th February, 2022, is contrary to law and the said inclusion has been made only to defeat the democratic rights of the voters of Kalaburagi Municipal Corporation and as such, petitioners have sought for quashing the impugned notifications.
5. I have heard Sri Pramod N. Khatavi, learned Senior Counsel on behalf of Sri N.B. Diwanji, learned counsel for the petitioner in Writ Petition No.202488 of 2021; Sri S.M. Chandrashekar, learned Senior Counsel on behalf of Sri A.M. Nagaral, learned counsel for the petitioner in Writ Petition No.200346 of 2022; and Sri A.S. Ponnanna, learned Senior counsel appearing on behalf of Sri Mahadev S. Patil, learned 12 counsel for the petitioners in Writ Petition No.200347 of 2022; learned Advocate General for the respondent-State and Sri Ashok Hanaranahalli, learned Senior Counsel appearing for Sri Gourish S. Khashampur, for the contesting respondents. SUBMISSIONS OF THE PETITIONERS:
6. Sri Pramod N. Khatavi, learned Senior Counsel appearing for the petitioner in No.202488 of 2021 contended that the Notification dated 11 th February, 2021 is unsustainable under law, as the same would affect the root of rotation contemplated under Section 10(1-A) of the Act. Emphasising on the aspects relating to rotation and the proceedings of the Government of Karnataka dated 27th August, 2014, he submitted that the reservation of post to the office of Mayor and Deputy Mayor, as per notification dated 11th February, 2021, is liable to be quashed. He further submitted that the respondent-State never issued Notification till date allotting posts for office of Mayor and Deputy Mayor to Scheduled Tribe candidate in Kalaburagi Municipal Corporation and therefore, he contended that the rule of rotation has not been followed by the 13 respondent-State while issuing impugned Notification dated 11 th February, 2021 and the same is contrary to the guidelines thereof. He further contended that, though this Court, by order dated 17th December, 2021, issued notice to the respondent- State and despite the petition being listed before this Court on several occasions, viz. on 21 st December, 2021, 04th January, 2022, 24th January, 2022 and 31st January, 2022, the State Government has not filed statement of objections, and this would make it clear that the State Government has shown step- motherly treatment to the Scheduled Tribe candidates, whose legitimate expectation to contest to the office of Mayor and Deputy Mayor in the Kalaburagi Municipal Corporation, is deprived by the respondent-State. Accordingly, he sought for quashing the Notifications dated 11 th February 2021 and 27th January, 2022 reserving allotment of posts to the office of Mayor and Deputy Mayor in Kalaburagi Municipal Corporation to the Scheduled Caste and General categories, respectively.
7. With respect to Writ Petition No.200346 of 2022, Sri S.M. Chandrashekar, learned Senior Counsel submitted that the 14 elections of Corporators to the Kalaburagi Municipal Corporation was held on 06th September, 2021 and in the said election, out of 55 elected Corporators, twenty three belong to Bharatiya Janata Party; twenty seven belong to Indian National Congress; four belong to Janata Dal (S); and one Corporator got elected as an independent candidate. He further contended that the second respondent has issued Notification/Calendar of events dated 06th November, 2021, specifying election to the post of Mayor and Deputy Mayor and such other statutory committees and the number of voters enumerated in the said Calendar of Events, was 63, comprising 55 Corporators, a Member of Parliament, Members of Legislative Assembly, Members of Legislative Council of Kalaburagi District. Due to ensuing Legislative Council elections, by letter dated 16 th November, 2021, the election to the post of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation was postponed. It is the main contention of learned Senior Counsel Sri S.M. Chandrashekar that, elections have to be concluded in terms of the Notification dated 06th November, 2021 and the respondent-State ought to have continued the electioneering process from the stage where 15 it was interrupted. Therefore, he contended that issuance of subsequent Notification dated 27 th January, 2022 by the respondent-State, is bad in law. He further contended that the election process has to be made comprising only 63 voters as specified under Notification dated 06 th November, 2021 and not 68 voters, as per Notification dated 27th January, 2022. In this regard, he places reliance on the judgment of the Hon'ble Supreme Court in the case of S.T. MUTHUSAMI v. K. NATARAJAN AND OTHERS reported in (1988)1 SCC 572; in the case of K. CHANNAIAH AND OTHERS v. STATE OF KARNATAKA AND OTHERS reported in ILR 2000 KAR 2572; and in the case of PUTTARAJA AND OTHERS v. STATE OF KARNATAKA AND OTHERS reported in 2009(2) AIR KAR 107. He further contended that, the jurisdiction of this Court under Article 226 of Constitution of India with regard to interference of election petitions, after issuance of calendar of events, is limited, however, in the instant case, he argued that there is no efficacious remedy available to the petitioner as there is flaw in issuance of impugned Notification regarding rotation by the respondent-State, as well as, the preparation of voters list as 16 stated above and therefore, he contended that this Court is having ample jurisdiction to interfere with the election proceedings in these writ petitions on the ground that there is mala fide action on the part of the respondent-State incorporating five more Members of Legislative Council as voters in the ensuing election to the office of Mayor and Deputy Mayor and the same would affect the democratic rights of the petitioner. Accordingly, he sought for interference of this Court in these writ petitions.
8. Insofar as Writ Petition No.200347 of 2022 is concerned, Sri A.S. Ponnanna, learned Senior Counsel appearing for the petitioners urged on the following grounds:
(a) Referring to paragraph 10 of the writ petition, Sri A.S. Ponnanna submitted that inclusion of five voters viz.
Members of Legislative Council as per Notification dated 27 th January, 2022, constitutes legal mala fide on the part of the respondent-State and he further contended that these five Members of Legislative Council are not the residents of Kalaburagi area and therefore, the learned Senior Counsel 17 contended that Notification dated 27 th January, 2022 is to be quashed. Emphasising on this aspect, he submitted that the democratic principles have not been respected by the respondent-State while issuing the impugned notification;
(b) Sri A.S. Ponnanna, further submitted that, it is settled principle that the respondent-State ought to have continued the electioneering process from the stage where it was interrupted and therefore, he contended that the procedure contained under the Act is not followed by the respondent-State and in this regard, he adopted the submissions advanced by learned Senior Counsel Sri S.M. Chandrashekar;
(c) Nextly, Sri A.S. Ponnanna submitted that as per notification dated 27th January, 2022, out of voters at Sl.No.65 to 68, two of them have been given power to cast vote in two Corporations including Kalaburagi Municipal Corporation, which is impermissible under law;
(d) Continuing his submission on emphasising the illegality committed by the respondent-State, Sri A.S. Ponnanna, learned Senior Counsel submitted that all the five Members of 18 Legislative Council included in the impugned notification dated 27th January, 2022, belong to Bharatiya Janata Party, which itself discloses the mala fide act on the part of the respondent- State and therefore, he submitted that the voters list issued as per Notification 06th November, 2021 is to be followed to elect to the office of Mayor and Deputy Mayor to Kalaburagi Municipal Corporation and accordingly, he argued for interference in these petitions.
SUBMISSIONS OF THE RESPONDENTS:
9. Per contra, learned Advocate General appearing for the respondent-State submitted that the rotation policy has been scrupulously followed by issuing the impugned Notifications and as such, sought to justify the action of the respondent-State. He further contended that the guidelines regarding reservation of posts to the offices of the Mayors and Deputy Mayors is governed under Section 10(1-A) of the Act. Refuting the contention of the learned Senior counsel appearing for the petitioners, he submitted that there is no such term as 'calendar of events' in respect of conducting election to the office of Mayor 19 and Deputy Mayor. Referring to the latest guidelines issued by way of Government Order dated 22nd January, 2021, he submitted that Clause (ii) of the said Government Order provides for cycle of rotation starting from 20th December, 1995. Referring to clause (ix) of the said Government Order, he argued that the mode of process of reservation is to be strictly adhered to by the respondent-State. During the course of the argument, he also provided the Statement indicating the rotation of roster for the offices of Mayors and Deputy Mayors of Corporation and argued that insofar as the next term of rotation at Kalaburagi City, Mayor post will be reserved for Scheduled Tribe and as such, he submitted that there is no impediment to allow prayer
(iii) in Writ Petition No.202488 of 2021. Referring to Section 7(1)(d) of the Act, he argued that Members of the Council of State and State Legislative Council could be registered as electors within the City. Emphasising on this aspect, he submitted that aforementioned Section 7(1)(d) of the Act does not provide that the Member of Legislative Council be from local area and therefore, he submitted that the arguments advanced by Sri A.S. Ponnanna, learned Senior Counsel, cannot be 20 accepted. Referring to Section 23 of Representation of Peoples Act, 1950, he submitted that inclusion of the additional five voters, is in accordance with law and he further submitted that some of the petitioners have challenged the order passed by the Electoral Registration Officer under Clause 20 of the Registration of Electors Rules, 1960 before the Deputy Commissioner and as such, he invited the attention of the Court to paragraphs 14 and 15 in Writ Petition No.200347 of 2022 and argued that the appeals are pending consideration before the Deputy Commissioner and therefore, it is his submission that unless the same is concluded, no interference is called for in these writ petitions. He further contended that the Regional Commissioner has issued Notification dated 06 th November, 2021 stating that the roster is fixed as per Twenty Third Term showing that the office of Mayor and Deputy Mayor is reserved for General (Woman) and Backward Classes-B category, however, same was rectified in subsequent notification dated 27th January, 2022 stating that the roster will be followed as per Twenty First Term reserving posts for the office of Mayor and Deputy Mayor for Scheduled Caste and General category and therefore, the said 21 anomaly has been rectified subsequently and therefore, he contended that same cannot be faulted with.
10. The learned Advocate General, further argued that writ petitions are not maintainable as per Article 329 of the Constitution of India. He further argued that the scope of interference by this Court under Article 226 of Constitution of India is very limited and accordingly, sought for dismissal of writ petitions.
11. Sri Ashok Haranahalli, learned Senior Counsel appearing on behalf of Sri Gourish S. Khashampur for Caveator/ Respondents in Writ Petition No.200347 of 2022, adopted the arguments of the learned Advocate General and further argued that, the writ petitions are not maintainable under Article 226 of the Constitution of India. He invited the attention of the Court to Section 23 of the Representation of the People Act, 1950 and submitted that sub-sections (2) and (3) of Section 23 of the above Act are the consequential orders which are of ministerial in nature and therefore, he argued that the writ petitions are liable to be dismissed. He also invited the attention of the Court 22 to Section 30 of the Representation of the People Act, 1951 and argued that there is no stage of interruption of election process as argued by the learned Senior Counsel appearing for the petitioners and submitted that inclusion of the five additional voters is in accordance with law and accordingly sought for dismissal of writ petitions.
REPLY SUBMISSIONS:
12. In reply, Sri S.M. Chandrashekar, learned Senior Counsel referring to Notification dated 06 th November, 2021 which provides for reservation of posts to the offices of Mayor and Deputy Mayor to General (Woman) and Backward Class-B category, argued that the valuable right of the petitioner, being a woman, to occupy the Office of Mayor has been jeopardised by issuance of later Notifications. Referring to letter dated 16 th November, 2021 (Annexure-E in Writ Petition No.200346 of 2022), he argued that the election process for Twenty Third Term was started, however, the same was postponed (ªÀÄÄAzÀÆqÀ¯ÁVzÉ) and therefore, he contended that the earlier notification is in force as on today, as the earlier Notification has 23 not been withdrawn by the respondent-State. Referring to Annexure-C in Writ Petition No.200346 of 2022, the learned Senior Counsel argued that, fixing the date as 20 th November, 2021 and fixing the time in the said Notification, substantiate that the election process has started by way of issuance of calendar of events and therefore, he contended that free and fair election is the basic structure of the Indian Constitution and same has to be followed by the respondent-State.
13. Learned Senior Counsel Sri Pramod N. Khatavi and Sri A.S. Ponnanna, in their reply, supported the view of Sri S.M. Chandrashekar, the learned Senior Counsel and sought for interference in these writ petitions.
CONSIDERATION:
14. After hearing the learned Senior Counsel appearing for the petitioners and respondents; and the learned Advocate General for the respondent-State, points for determination that would arise for consideration in these writ petitions are as follows:
24
(a) Whether the writ petitions are maintainable under Article 226 of Constitution of India?
(b) Whether the impugned Notification/voter list dated 27th January, 2022 is as per Section 10 of the Act?
15. In order to adjudicate these petitions, it is relevant to extract Section 10 of the Act, which reads as under:
"10. Mayor and Deputy Mayor.- (1) Subject to the provisions of subsection (1A) the Corporation 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 referred to in clause (a) of sub-section (1) of section 7 to be the Mayor, and
(b) one other councillor referred to in clause (a) of sub-section (1) of section 7 to be the Deputy Mayor.
(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 25 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;
Provided that out of the offices reserved under this clause eighty percent of the total number 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.
(c) not more than fifty percent of the total number of offices of Mayor and Deputy Mayor 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.
Explanation.- For the removal of doubts it is hereby declared that the principle of rotation for purposes of reservation of offices under this subsection shall commence from the first ordinary election to be held after the first day of June 1994."26
16. The common ground raised by the petitioners in these petitions is that, the impugned notifications violate the principle of rotation provided under the Act. On the other hand, the case of the respondents is that the Writ Petitions are not maintainable, as there is bar to entertain the writ petitions under Article 226 of the Constitution of India.
17. In this context, it is apt to refer to the Division Bench decision of this Court in the case of L. SHIVANNA v. STATE OF KARNATAKA reported in ILR 1988 KAR 2121, wherein the Division Bench has observed as follows:
"Right from the earliest Judgment of the Supreme Court in PONNUSWAMY'S CASE, the Supreme Court in all its decisions on the point has laid down that the preparation of the electoral roll is not a process of election. Therefore, it is impossible to hold that any illegal omission to include the names of persons who are entitled to be included inspite of their application for inclusion made in the prescribed manner and within the prescribed time or illegal inclusion in the electoral roll of the names of persons who are not eligible to be included, is a part of the election process and therefore cannot be a subject matter of challenge in an election petition contemplated under Article 429(b) of the Constitution read with Section 27 100 of the 1951 Act. This aspect is laid down by the Supreme Court in NRIPENDRA v. JAI RAM VERMA, . That was a case in relation to an election to the Legislative Council of the State of Uttara Pradesh. In the electoral roll prepared for the concerned Local Authorities constituency, the names of persons who had ceased to be members of the Local Authority and consequently ineligible to be electors in the election, were included. After the election, the petitioner therein challenged the legality of the election in an election petition. One of the grounds raised was the illegality in the preparation of the electoral roll. The High Court accepted the contention and set aside the election. The Supreme Court reversed the Judgment of the High Court holding that the illegality in the electoral roll cannot be challenged in an election petition and that the election Tribunal had no jurisdiction to adjudicate upon such a question, reiterating similar view taken in HARI PRASAD v. V.B. RAJU, . The Supreme Court concluded thus:
"27. It is true, the result is that with a small margin the appellant landed first as the victor in the election and even the balance might have tilted in favour of the respondent if the so-called invalid votes were to be excluded. But this uncanny consequence cannot be helped on the law laid down by this Court and for very good reasons impregnated in the electoral provisions demanding constant awareness on the part of all and above all of the citizenry."28
This decision makes it clear that the only course open to a vigilant citizen is to have the illegality rectified before the election and if not done, as far as the Election Tribunal is concerned, it had no jurisdiction to go into any question relating to the legality of the electoral roll.
21. The learned Advocate General fairly and frankly submitted that in the light of the declaration of law by the Supreme Court in the decisions on which the petitioners relied, he could neither say that the preparation of the electoral roll was a part of the election process nor that the inclusion of ineligible persons in the electoral roll, even if it were to tilt the result of an election, can be a subject matter of challenge, in an election petition. He also submitted that a Writ Petition under Article 226 questioning the legality of the inclusion of names of ineligible persons or non-inclusion of names of eligible persons inspite of their application for inclusion made in the prescribed manner, and seeking appropriate relief was maintainable if presented before the issue of notification calling upon the constituency to elect and if decided also before the said date.
22. As far as maintainability of a Writ Petition under Article 226 seeking redressal of the grievance in the preparation of the electoral roll is concerned, as rightly conceded by the learned Advocate General, it is maintainable. This position is evident from the wording 29 of Article 429 itself. In order to bring home this point, we shall refer to Articles 327 and 329. They read :
"327. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses."
xxx xxx xxx
329. Notwithstanding anything in this Constitution -
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 427 or Article 428, shall not be called in question in any Court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."
Article 428 empowers the Parliament, inter alia, to make laws on the following topics:
(1) with respect to all matters relating to or in connection with elections to Parliament and State Legislature;
(2) the preparation of electoral roll, and 30 (3) the delimitation of constituencies.
Clause (a) of Article 429 imposes a total bar on the jurisdiction of all the Courts; which certainly includes the High Court exercising jurisdiction vested in it under the Constitution; to go into the validity of any law relating to the delimitation of constituencies. Clause (b) of Article 429 imposes a similar bar, but only regarding the challenge to an election and further provides that it can be challenged only in an election petition. Neither Clause
(a) nor Clause (b) bars a challenge to the electoral roll in a petition under Article 226 of the Constitution. If the intention of the founding fathers of the Constitution was to curtail the jurisdiction of all Courts to adjudicate upon the legality of electoral roll, such a bar would have been incorporated in Article 429(b). Therefore, to hold that the jurisdiction of the High Court under Article 226 is barred by Article 429, even regarding adjudicating the legality of electoral roll, would amount to the expanding of the bar created by Article or to the imposition of a bar, which the Constitution itself does not impose. In this behalf, it is necessary to refer to Section 30 of the 1950 Act. It reads:
"30. JURISDICTION OF CIVIL COURTS BARRED:
No Civil Court shall have jurisdiction -
(a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or 31
(b) to question the legality of any action taken by or under the authority of an electoral registration officer, or of any decision given by any authority appointed under this Act for the revision of any such roll."
But for the above provision, any Civil Court would have had the jurisdiction to adjudicate upon questions relating to the validity of electoral roll prepared under the 1950 Act. In fact it is the bar to the jurisdiction of the Civil Court in the matter created by Section 30, which has been held to extend to the Election Tribunal also, by the Supreme Court in the case of Hariprasad."
23. For these reasons, we are of the view that the bar imposed by Article 429(b) does not extend to the adjudication of questions relating to the legality of an electoral roll. To put it in a nut shell, our conclusion is - the doors of the High Court under Article 226 is closed if the doors of the Election Tribunal is open, and not closed if the doors of the Election Tribunal is not open. Any view to the 'contrary would lead to disastrous result, in that, even if inclusion of names or non-inclusion of the names of persons in the electoral roll is patently illegal, there would be no remedy at all. Rule of law being one of the basic structures of our Constitution, any interpretation which leads to such a result, that is, no remedy for the redressal of a legal injury must be held to be not envisaged by the provisions of the Constitution. An indication in this regard is available in the Judgment of the Supreme Court in Mohinder Singh, of the Judgment in which the conclusion is incorporated, reads: 32
"93. We conclude stating that the bar of Article 429(b) is as wide as the door of Section 100 read with Section 98. The Writ Petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach. On this view of the law ubi jus ibi remedium is vindicated election in justice is avoided and the constituency is allowed to speak effectively. In the light of and conditioned by the law we have laid down, we dismiss the appeal. Where the dispute which spirals to this Court is calculated to get a clarification of the legal calculus in an area of national moment, the parties are the occasion but the people are the beneficiaries, and so costs must not be visited on a particular person. Each party will bear his own costs."
As can be seen from the above paragraph, in that case the Court held that the Writ Petition was not maintainable, for the reason the ground on which the said Writ Petition was presented, could be raised in an election petition and therefore the Supreme Court observed that the principle of ubi Jus ibi remedium' stood vindicated in that case, though the remedy stood postponed to a date after the election, which postponement was on sound public policy and the necessity of utmost expedition in the matter of holding election to the Parliament and State Legislature which is the very essence of a democratic system. Applying the same principle it should be held that in a case of this type in which the challenge is to the inclusion of ineligible persons in the electoral roll, as the same cannot be adjudicated after election in an election petition, the remedy under Article 226; the only remedy 33 available under the Constitution; is available to an aggrieved citizen.
24. An indication to this effect is also available in the judgment of the Supreme Court in Inderjit Barua, AIR 1986 SC 106. In that case after holding that preparation of electoral roll was not a process of election, the Supreme Court said thus:
"....In a suitable case challenge to the electoral roll for not complying with the requirements of the law may be entertained subject to the rule indicated in Ponnuswami's case . But the election of a candidate is not open to challenge on the score of the electoral roll being defective."
As the challenge to electoral roll is barred before election Tribunal, the challenge can be only in a Writ Petition. "
(emphasis supplied)
18. This Court, in the case of H.C. YATISH KUMAR AND OTHERS v. KARNATAKA ELECTION COMMISSION AND OTHERS reported in ILR 2005 KAR 3323, while dealing with reservations of seats in Taluk Panchayats and Zilla Panchayats by rotation, at paragraphs 16 to 18, has observed thus:
"16. Article 243-O(a) specifies that the validity of any law relating to delimitation of Constituencies or allotment of seats to such Constituencies cannot be called 34 in question in any Court. There is no reference in Article 243-O with regard to the word 'rotation'. The absence of the word 'rotation' in Article 243-O of the Constitution makes it clear that there is no bar for the Courts to exercise its judicial review in the matter of allotment of seats by rotation to different constituencies.
17. The learned Advocate General in support of his contention placed reliance on a decision of the Supreme Court in Election Commission of India v. Ashok Kumar and Ors., . In this case, the Election Commission of India, announced the programme for the general election to constitute the 13th Lok Sabha. After the commencement of the process of election two writ petitions were filed before the High Court of Kerala challenging the validity of the election notification, issued by the Election Commission of India. The High Court granted an interim order by exercising its power under Article 226 of the Constitution staying the counting of votes pending disposal of the writ petitions. Against this interim order granted by the High Court, the Election Commission of India, filed Special Leave Petitions before the Supreme Court of India. The Supreme Court of India allowed the Special Leave Petition and set aside the interim order passed by the Kerala High Court. But in the instant writ petitions before us, the 1st respondent State Election Commission has not issued any notification commencing the process of election. In the writ petitions before us, the validity of Rules 1998 and the notifications relating to 35 delimitation and allotment of seats to different Constituencies are called in question. Therefore, the facts in Ashok Kumar's case are entirely different from the facts in the writ petitions before us. Therefore, the decision in Ashok Kumar's case (supra) will not come to the aid of the respondents. On the other hand the law laid down by the Apex Court in Ashok Kumar's case will help the contention of the petitioners in the writ petitions before us. The Apex Court in Ashok Kumar's case held in paras 31 and 32 as under:-
"31. The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question" in the body of Article 329(b) and these words provide the terminative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election" the bar of Article 329(b) is attracted. Else it is not.
32. For convenience sake we would now generally sum up our conclusion by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely interpreted to as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.36
(2) Any decision sought and rendered will not amount to "calling in question an election" if it 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.
(3) 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 as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
(5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext 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 37 and precision and supporting the same by necessary material".
In view of the law laid down by the Supreme Court in Ashok Kumar's case, there is no bar for this Court to entertain the writ petitions under Article 226 of the Constitution before us.
18. A Division Bench of this Court in A. Ramdas and Ors. v. State of Karnataka and Ors., ILR 2001 Karnataka 5354 held as under:-
"17. First attending to the objection raised regarding jurisdiction of this Court to entertain pleas of constitutional invalidity of the impugned notification based on Article 243-ZG, Section 21(1A) of the Municipal Act, Section 13(1A) of the Corporation Act, in our considered opinion, in view of the pronouncement of the Supreme Court in the case of L. Chandra Kumar v. Union of India, the above provisions sought to ouster the jurisdiction of the Court cannot apply to High Courts and the Supreme Court since if any such interpretation is sought to be put, the provisions may fact the risk of being declared unconstitutional. In para 99 of the judgment, it has been declared by the Supreme Court that-
"The jurisdiction conferred upon the High Court under Article 226 and 227 of the Constitution, and upon the Supreme Court under Article 32 of the Constitution in part of the innoviolable basic structure of our constitution. While this jurisdiction cannot be ousted, the other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Article 226 and 227 and 32 of the Constitution".38
18. Therefore, though under the Constitution and the respective Acts the jurisdiction of the Courts and the Tribunals inferior to High Court can be ousted but not that of High Court itself.
Therefore, objection raised by the learned Advocate General regarding jurisdiction of this Court to entertain constitutional validity of the notification cannot be accepted".
We are in respectful agreement with the law laid down by this Court in A. Ramdas (supra). Therefore, we decline to accept the contention of the learned Advocate General that this Court cannot entertain the writ petitions as not maintainable and that, there is a bar for this Court to entertain the writ petitions. Accordingly, Point No. 1 is answered against the respondents.
(underlining emphasised)
19. In the above judgment, the Division Bench of this Court held that, judicial review on election proceedings is not totally barred, unless the petitioner makes out a case for interference where the respondent-State proceeded with Election process in derogation of statutory and constitutional philosophy of democratic values.
20. In the case of KARNATAKA STATE ELECTION COMMISSION, BENGALURU v. G. SANGAPPA AND OTHERS 39 reported in 2011(3) KLJ 32, the Division Bench of this Court, at paragraph 5 of the said judgment, has held as follows:
"5. While repudiating, the contention advanced at the hands of the learned counsel for the appellant, it was the vehement contention of the learned counsel counsel for respondent No.1, that the simple prayer made before the learned Single Judge was, to require the appellant to enforce the process of "reservation" by providing for "rotation" as per the mandate of Section 162 of the Panchayat Raj Act read with, Rule 3 of the Reservation by Rotation Rules, 1998. It was the emphatic contention of the learned counsel for respondent No.1, that through Writ Petition No.36337 of 2010, respondent No.1 had not assailed any legal provision/legislative enactment, relating to any aspect whatsoever, including allotment of seats. It was therefore reiterated, that the claim was merely for the enforcement of the existing provisions of law, and accordingly, not within the scope of the bar contemplated under Article 243-O of the Constitution of lndia."
(emphasis supplied)
21. In the backdrop of these factual aspects, it is relevant to refer to Articles 243-Q, 243-R and 243-T of the Constitution of India. Article 243-Q provides for constitution of 40 Municipalities. Article 243-R provides for composition of Municipalities. The same reads thus:
"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
(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 the Municipal area;
xxx xxx xxx (underlining emphasised)
22. Article 243-T of the Constitution of India provides for reservation of seats and the same reads as under: 41
243-T. 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 42 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."
(emphasis supplied)
23. This Court, in the case of M. ABDUL AZEEZ v. STATE OF KARNATAKA reported in ILR 2014 KAR 1839, had an occasion to consider the object of rotation under the Act, at paragraphs 11 to 17 of the judgment, has observed thus:
"11. The meaning of the principle of rotation in the context of the above referred proviso to sub-Section (1A) of Section 10 of the Municipal Corporations Act and the proviso to sub-section (2A) of Section 42 of the Municipalities Act needs to be stated to answer the question raised in these writ petitions. It is also submitted by the learned Counsel on both sides that there is no judgment by this Court on the interpretation of the word 'rotation' occurring in both the above provisos.
11.1. Both the above provisos which are similarly worded state that allotment of the offices of Chairpersons and Vice Chairpersons reserved in the Municipalities of 43 the State shall be allotted to the reserved categories by rotation in the prescribed manner. Though both the provisos are quoted above, for convenience, the proviso under the Municipalities Act is extracted below:
"Provided that the offices reserved under this sub-section shall be allotted by rotation in the prescribed manner to different municipal councils.
Explanation.-- For the removal of doubts it is hereby declared that the principle of rotation for the purpose of reservation of offices under this sub-section shall commence from the first ordinary election to be held after the first day of June, 1994;"
Rotation means something which moves in a circular order. 'Rotate' means to cause to turn in a circle. The principle of rotation, in the context of the above two provisos, means that the offices reserved for each of the reserved categories requires to be allotted by rotation in a circular order among the Municipalities of a particular kind till the said category is represented in all the Municipalities of that kind and allotment to the said category cannot be repeated in any Municipality till a cycle of rotation is completed. When a particular reserved category is represented in all the Municipalities of a particular kind, it would complete one cycle of rotation for that category and thereafter, a fresh cycle of rotation for that category shall commence. Every reserved category has to have an independent cycle of rotation. Every such cycle shall be independent of its 44 previous or the succeeding cycle. Before completion of one cycle of rotation for a reserved category as explained above, if allotment to that category is repeated in any Municipality, it would be violative of the principle of rotation and such an allotment is illegal and is liable to be set aside. This is the principle of rotation intended by the Legislature under the two provisos referred to above. The object of rotation is to provide representation to each of the reserved categories to the offices of Chairpersons and Vice Chairpersons in all the municipalities. I may add that to complete a Cycle of rotation in respect of a particular reserved category, it may take only one circular movement or several circular movements among the municipalities of a particular kind like CMCs, TMCs etc. depending upon the total number of offices reserved for that category in the State and the number of municipalities of that kind in the State. Several circular movements may become necessary due to several other reasons also. For eg., during a circular movement, when no candidate belonging to a particular reserved category is available in a municipality, then the allotment shall go to the next municipality in line in the circular order. Another example is, when a rule requires that both the offices in a Municipality shall not be allotted to the same category. There may be many such valid reasons for bypassing a Municipality and to go to the next in line available in the circular order or to go to a previous one which was bypassed earlier for any valid reason. This all depends upon the order of rotation laid down by the Rules 45 framed in this behalf by the State Government. But under no circumstance, 'repetition' is permissible i.e. allotment of the office for the same reserved category for the second time in a Municipality before commencement of a fresh cycle of rotation. Any 'repetition' would be contrary to the principle of rotation. However, in respect of the category of Backward classes, this principle of rotation is subject to the following proviso which is incorporated in both the Municipal Acts:
"Provided further that if no person falling under category "A" is available, offices reserved for that category shall also be filled by the persons falling under category "B" and vice versa;"
11.2 The following example would illustrate the principle of rotation:
If the office of President in a City Municipal Council is allotted to a particular reserved category, the said office cannot be allotted for the second time to the said category in that Municipal Council before completion of a cycle of rotation for that category i.e. till the said category is allotted the office of President in all the other City Municipal Councils once.
12. An elementary test to find out as to whether the principle of rotation is violated or not, is to examine as to whether any allotment to a reserved category is repeated in any Municipality before commencement of a fresh cycle of rotation for that category. If there is any 46 allotment to any reserved category for the second time in a Municipality before completion of a cycle of rotation or before commencement of a fresh cycle of rotation for that category, it would be a clear violation of the principle of rotation.
13. The principle of rotation as explained above is not followed by the State Government while making allotments in the impugned notifications. Allotments made to several reserved categories in a large number of municipalities are 'repetitions'. What is 'repetition' is already explained above. It is also not the case of the State Government that there are no 'repetitions' in the allotments made in the impugned notifications.
14. The Rules framed by the State Government under both the Municipal Acts do not provide for the principle of rotation as explained above. This is evident by the very allotments made in the impugned notifications. The State Government is duty bound to amend the existing rules or to frame new rules to give effect to the principle of rotation which is the mandate of the Legislature.
15. The State Government appears to be under an erroneous impression that whatever it provides under the rules would become the principle of rotation. The Government is empowered by the legislature under the two provisos referred to above to frame Rules to give 47 effect to the principle of rotation as explained above being what the legislature intended by 'rotation'. The Rule making power given to the Government is not to frame its own policy of rotation as is done under Rule 73-A(5) of the Karnataka Municipal Corporations (Election) Rules, 1979. The said sub-rule reads as follows:
"73-A(5) The offices of the Mayor and Deputy Mayor in the City Corporations of the State to Scheduled Caste/Scheduled Tribes/Women, and Backward Classes for the subsequent terms be determined by the Government from time to time by taking into consideration such factors as deem fit:
Provided that if the reservation worked out to any category is less than 0.5%, then no offices of Mayor and Deputy Mayor be reserved to such category."
Under no circumstance, the Rules can permit 'repetition'. If any Rule permits or enables repetition, that Rule is ultra vires the principle of rotation and hence ultra vires the Parent Act. The Rules, to be valid, should be framed in such a way that there shall be no scope for 'repetition'.
16. The State Government has acted against the principle of rotation in making the allotments in the impugned notifications resulting in violation of Article 243U of the Constitution of India.
17. The State Government shall now give effect to the principle of rotation as explained above by strictly 48 avoiding 'repetition' of allotments to any reserved category by taking into consideration all the previous allotments made in each of the Municipalities as any contravention of the principle of rotation would be violative of the legislative mandate contained in Section 42(2A) of the Karnataka Municipalities Act and Section 10(1A) of the Municipal Corporations Act."
24. The ruling of this Court in the aforementioned case is squarely applicable to the case on hand on the point that respondent-State, sans the concept of rotation policy, that too without following its own guidelines, issued the impugned Notifications, which require to be set aside in these petitions. As rightly submitted by the learned Advocate General, the Regional Commissioner himself is not aware of the Term of election as to whether it is Twenty First Term or Twenty Third Term, which is the root cause for these writ petitions.
25. The Division Bench of this Court, in an unreported judgment in Writ Appeal No.101175 of 2016 decided on 22 nd November, 2016 in the case of MANOHAR PARAPPA RAKKASAGI v. THE STATE OF KARNATAKA AND OTHERS, at paragraphs 7 and 8 of the judgment, held as follows:
49
"7. In catena of cases, this Court has clearly opined that in case the reserved category for the post of President, Vice-President is changed by the Government without calling for objections from the public at large, and in case no cogent reasons have been assigned by the Government for changing the said category then the subsequent notification deserves to be quashed and set aside. [Ref. to Kallappa S/o Shivaningaa Sonnad v. The State of Karnataka (W.P.No.202075/2016) decided by this Court on 02.06.2016].
8. The learned Single Judge has clearly noticed the fact that before issuing the Notification dated 01.03.2016 or changing the reserved category for the post of President, the Government did not invite any objections from the public at large. Moreover, in the Notification dated 01.03.2016, the government did not assign any cogent reason for changing the said category. Therefore, following the catena of judgments of this Court, the learned Single Judge was justified in quashing the Notification dated 01.03.2016."
(emphasis supplied)
26. Perusal of writ papers clearly substantiate the fact that, the respondent-State, in utter disregard to the aforementioned decision of the Division Bench of this Court, modified the reservation policy in the impugned notifications, 50 without following the principle of calling objections from the affected public at large. In these writ petitions, respondent- State fails to place record before the Court as to whether it had followed the dictum rendered in the aforementioned case. It is evident that the respondent-State did not take recourse to publish in the Gazette before modifying the roster, resulting in miscarriage of justice.
27. The Hon'ble Apex Court, in the case of UNION OF INDIA v. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANOTHER reported in (2002)5 SCC 294 at paragraph 46.4 held that, "in a democracy, the electoral process has a strategic role. The little man of the country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted." It is further held that "the right to get information in a democracy is recognised all through out and it is a natural right flowing from the concept of democracy."
28. Hon'ble Supreme Court in the case of BABU VERGHESE AND OTHERS v. BAR COUNCIL OF KERALA AND 51 OTHERS reported in (1999)3 SCC 422, at paragraph 38 of the judgment, observed thus:
"38. Lastly, it was contended by the learned counsel for the respondents that the elections already having been held and the members have been in office for more than one and half years, this Court should not intervene, specially as the appellants could have challenged the elections by way of an election petition which was not done. This contention is wholly devoid of merit. The decision of this Court in BAR COUNCIL OF DELHI v. SURJIT SINGH is a complete answer to this contention."
29. Exercising judicial review on the electioneering process is not tally barred under Article 226 of the Constitution of India. However, this Court has to test, whether democratic principles are adhered to and the respondent-State has followed the principles and procedure contemplated under the particular enactment. In the absence of these aspects, this Court is having jurisdiction under Article 226 of the Constitution of India to set right the anomalies to uphold Rule of Law principles. It is trite law that power vested in an authority must be discharged in accordance with constitutional/statutory requirement (see 52 (2020)4 SCC 78). Hon'ble Supreme Court, in the case of RAMACHANDRA v. GOVIND reported in AIR 1975 SC 915 held that, "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance, are necessarily forbidden. This Rule squarely applies where the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other." The aforementioned dictum was reiterated by the Hon'ble Supreme Court in the case of MACKINNON MACKENZIE AND COMPANY LIMITED v. MACKINNON EMPLOYEES UNION reported in (2015)4 SCC 544.
30. Applying the aforementioned principles laid down by this Court and the Hon'ble Supreme Court to the case on hand, I am conscious of the fact that scope of interference under Article 226 of the Constitution of India is limited and keeping in mind the constitutional mandate of non-interference by judicial body in an election process, I am of the view that learned Senior Counsel appearing for the petitioners were justified in arguing 53 that the Notification dated 27 th January, 2022 issued by the respondent-State is illegal and contrary to the Act and Rules made therein, as the respondent-State has issued the first Notification on 03rd September, 2018 reserving posts of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation to Scheduled Caste and General category and thereafter, issued another notification dated 26 th December, 2019 reserving the post of Mayor and Deputy Mayor to Scheduled Tribe and Backward Class-A respectively, so also, issued third Notification on 11th February, 2021 reserving to General (Woman) and Backward Class-B categories for Mayor and Deputy Mayor and lastly, by impugned notification dated 27 th January, 2022, reserved the post of office of Mayor and Deputy Mayor to Scheduled Caste and General category. It is to be noted that the respondent-State committed the anomaly of changing reservation without adhering to the scope and ambit of Section 10(1-A) of the Act and the Rules made therein. Though the learned Advocate General vehemently argued by relying upon the Statement indicating the rotation of roster to post of Offices of Mayor and Deputy Mayor of Corporations, however, the said 54 rotation of roster do not have statutory recognition. It is also to be noted that the said Statement indicating rotation of roster for the Offices of Mayor and Deputy Mayor of Corporations, cannot override Section 10(1-A) of the Act as well as Article 243-T of the Constitution of India. It is trite law that no Notification/Circular/instructions, etc. shall run counter to Article 243-T of the Constitution of India. If the said statement indicating the rotation of roster for the offices of Mayor and Deputy Mayor of Corporation is accepted, then the constitutional right of the reserved candidates is infringed. In that view of the matter, I do not find force in the arguments advanced by the learned Advocate General and Sri Ashok Haranahalli, learned Senior Counsel appearing for the contesting respondents that, writ petitions are not maintainable.
31. For the foregoing reasons, I am of the opinion that the impugned Notification dated 27 th January, 2022, on the face of it, is contrary to law declared by this Court and the Hon'ble Apex Court in the decisions referred to above, so also, considering the factual aspects of the case on hand, it is to be 55 held that these writ petitions are maintainable. It is also pertinent to mention that if these writ petitions are not entertained inter alia judicial review is not exercised under the peculiar facts and circumstances, it would go against the democratic principles enshrined under the constitutional philosophy, which is the hallmark of the Indian Constitution.
32. It is also noticed from the writ papers that the State Government has issued notification after notification, without following the procedure as declared by the Hon'ble Apex Court in the case of S.T. MUTHUSAMI (supra) wherein, at paragraphs 14, 15 and 17 of the judgment, the Hon'ble Supreme Court observed thus:
"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 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:56
.... 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."
15. We are inclined to accept this view which lays down a salutary principle.
16. xxx xxx xxx
17. We are of the view that the Division Bench of the High Court committed a serious error in issuing a writ under Article 226 of the Constitution quashing the Errata Notification allotting the symbol 'hand' to the appellant by its judgment under appeal. We, therefore, set aside the judgment of the Division Bench of the High Court and dismiss the writ petition filed in the High Court. The Returning officer shall proceed with the election in accordance with law from the stage at which it was interrupted by the order of the High Court. "
(emphasis supplied)
33. This Court, in the case of PUTTARAJA supra at paragraphs 11 to 13, has observed thus:57
"11. In the Single Bench decision of this Court in Dhananjaya's case (supra), this Court did observe that the returning officer functioning under the Act has no power or authority to postpone the election sine die and therefore while quashing the order postponing the election and directed the returning officer to continue the election from the sate that it had been interrupted and also levied cost of Rs.500/- on the officer acting without authority of law payable to each of the petitioners.
12. In case of single Bench decision of this Curt in B.D. Manjunath's case (supra), this Court while examining the powers of the State Government to interfere with the conduct of elections already notified by issue of calendar of events and in exercise of its powers under Section 39A(4) read with Section 121 of the Act held that these statutory provisions do not empower the State Government to postpone the elections which are already notified by issue of calendar of events and direction to this effect as issued even by the State Government is bad in law and quashed the same and again directed the elections to be continued from the stage at which it had been interrupted.
13. The observation made by the Supreme Court in MUTHUSAMI's case (supra), particularly, as contained in paragraph 17 of this Judgment, wherein the Supreme Court noticed that interference by the High Court with the conduct of the elections to the Panchayat Union, i.e. the 58 post of Chairman to the Panchayat Union under the provisions of Tamil Nadu Panchayats Act, 1958 was again bad in law and directed the returning officer to proceed with the elections in accordance with law and from the stage at which it has been interrupted by the order passed by the High Court in writ jurisdiction."
(emphasis supplied)
34. In the case of K. CHANNAIAH (supra), at paragraph 34 and 35, it is observed thus:
"34. We now come to the next question. The vexed question is whether once the calendar of events is in force and the election comes to a grinding halt because of interruption and when the interruption is lifted, whether the election should continue under the same calendar of events or under the fresh calendar of events.
35. The pronouncements of the Courts clearly indicate that whenever the election is interrupted by an interim order of the Court and finally the petition is dismissed the election must proceed from the stage at which it was interrupted. This in my opinion is the correct position of law."
(emphasis supplied) 59
35. It is trite law that, democracy is the basic structure of the Constitution of India. When the democratic principles are not adhered to, this Court has jurisdiction to interfere with such actions of the State and set right the things in consonance with the democratic principles laid down under the golden thread of the Indian Constitution. "Democracy" reflects pulse of the citizens. In this aspect, the Hon'ble Supreme Court, in the case of VIPHULBHAI M. CHAUDHARI v. GUJARAT CO-OPERATIVE MILK MARKETING LIMITED AND OTHERS reported in (2015)8 SCC 1 at paragraph 16, 18 and 20, has observed thus:
"16. The principle of representative democracy is the election of representatives by the people otherwise eligible to cast their vote and the people thus elected, constituting the body for the management of an institution. Thus, in the case of co-operative societies, after the amendment in the Constitution, there has to be a Board of elected representatives, which may be called Board of Directors or Governing Body or a Managing Committee, etc. to which the members entrust the direction and control of the management of the affairs of the society. That representative body selects one among the elected representatives as its Chairman or any other office-bearer, as the case may be. Selection is the act of 60 carefully choosing someone as the most suitable to be the leader or office-bearer. Thus, there is a lot of difference between election of delegates/representatives to constitute a body and selection of a person by the body from amongst the elected members to be the leader. It is to be borne in mind that the management and control of the society is entrusted to the representative body, viz. the Board of Directors and that the Chairperson elected by the Board of Directors is the Chairperson of the society and not of the Board of Directors.
18. In Pratap Chandra Mehta V. State Bar Council of M.P. and in Usha Bharti V. State of U.P. the concept of democratic principles governing the democratic institutions have been discussed. In a democratic institution, confidence is the foundation on which the superstructure of democracy is built. The bedrock of the democratic accountability rests on the confidence of the electorate. If the representative body does not have confidence in the office-bearer whom they selected, democracy demands such officer to be removed in a democratic manner.
19. xxx xxx xxx
20. If a person has been selected to an office through democratic process, and when that person loses the confidence of the representatives who selected him, those representatives should necessarily have a democratic right to remove such an office-bearer in whom 61 they do not have confidence, in case those institutions are viewed under the Constitution/statutes as democratic institutions."
(emphasis supplied)
36. Applying the law declared by the Hon'ble Apex Court in MUTHUSAMI's case (supra) to the case on hand, it is evident that vide Notification dated 16 th November, 2021 the respondent-State has postponed (ªÀÄÄAzÀÆqÀ¯ÁVzÉ) the election process and the same would substantiate the fact that the ensuing election to the post of Office of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation is interrupted on account of election to the Legislative Council in the State of Karnataka and therefore, I find force in the submission made by Sri S M Chandrashekar, learned Senior Counsel that, the respondent- State ought not to have ventured to issue subsequent Notifications, without withdrawing the earlier Notification dated 16th November, 2011 and therefore, the impugned Notification dated 27th January, 2022 requires to be set aside.
37. As I have reached to a conclusion that the respondent-State has not properly followed the rotation policy as 62 per their own guidelines and the pronouncements made by this Court referred to above and therefore, the impugned Notification dated 27th January, 2022 is bad in law for the reasons stated above and same is contrary to Articles 243-F and 243-T of the Constitution of India. I am of the view that the arguments advanced by the learned counsel appearing for the parties insofar as inclusion of voters list at Sl.No.64 to 68, is only academic in view of the law declared by the Hon'ble Apex Court in the case of S.T. MUTHUSAMI (supra). In this regard, I find force in the submission made by the learned Senior Counsel Sri S.M. Chandrashekar, that the respondent-Government is barred from making any alteration/adding voters to the list already issued as per the Notification dated 06th November, 2021 and if the respondent-Government is allowed to alter the voter list whimsically, same would affect the constitutional right of the petitioners and other voters in the constituency.
38. I have also noticed from the writ papers that the Notification dated 16th November, 2021 was issued by the Regional Commissioner for election of Twenty Third term of 63 Mayor and Deputy Mayor of Kalaburagi Municipal Corporation, however, without withdrawing the same nor publishing in the Official Gazette, the Regional Commissioner, whimsically, issued impugned Notification dated 27th January, 2022 evidencing as Twenty First term, amounts to violation of principles of natural justice. The Regional Commissioner ought to have notified the public regarding the changes/modification in respect of the Term of the election in view of the law declared by the Division Bench of this Court in the case of MANOHAR PARAPPA RAKKASAGI (supra) and therefore, the impugned Notification dated 27 th January, 2022 is unsustainable under law. It is well established principle that, rules of game cannot be altered after the commencement of the game and the said moral obligation is applicable to the respondent-State also. Accordingly, the points that arose for consideration in these petitions are answered in favour of the petitioners. In the result, I pass the following:
ORDER
1. Writ Petitions are allowed;64
2. Notification No.UDD 24 MLR 2021 dated 11 th February, 2021 (Annexure-A) in Writ Petition No.202488 of 2021 is quashed;
3. Notification dated 27th January, 2022 (Annexure-
F) issued by the respondent-Government in No.PRA/AA/KA/CHUNAVANE/29/2021-2022 in Writ Petition No.200346 of 2022 and Notifications even dated (Annexure- G and H) in Writ Petition No.200347 of 2022 respectively, is quashed;
4. Writ of mandamus is issued to the respondent-
Regional Commissioner to allot the Offices of Mayor and Deputy Mayor of Kalaburagi Municipal Corporation in terms of the guidelines issued by the State Government as per Section 10(1-A) of the Act;
5. Writ of mandamus is also issued to the respondent-Regional Commissioner to continue the Election of Mayor and Deputy Mayor, from the stage where it was interrupted, as per voter list in 65 the Government Order dated 06th November, 2021 produced at Annexure-D in Writ Petition No.200346 of 2022 in terms of the law declared by the Hon'ble Supreme Court in the case of S.T. MUTHUSAMI and the Division Bench judgment of this Court in the case of MANOHAR PARAPPA RAKKASAGI (supra), and complete the entire election process, within one month from today, in the light of the observation made above;
6. No order as to costs.
Sd/-
JUDGE lnn