Karnataka High Court
Sri Khaleel Ahmad vs The State Of Karnataka on 11 January, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2017
Before
THE HON'BLE DR JUSTICE VINEET KOTHARI
WRIT PETITION No.27635/2016 (LB-ELE)
BETWEEN:
Sri Khaleel Ahmad
S/o Nizar Ahmad,
Aged About 43 Years,
Member of Taluk Panchayath,
K.R.Pet Taluk, Mandya District-471 201 ... Petitioner
(By Mr. V.R.Sarathy, Advocate.)
AND:
1. The State of Karnataka
Rep. by the Secretary,
Department of Panchayat Raj,
Multistoried Building,
Bangalore-560 001.
2. The Assistant Commissioner
Mandya District,
Mandya District-571 201
3. The Executive Officer
Taluka Panchayath,
K.R.Pet, K.R.Pet Taluk,
Mandya District-571 201. ... Respondents
(By Mr. A.G.Shivanna, Additional Advocate General a/w
Mr. A.K.Vasanth, Additional Government Advocate for R-1 &
R-2.)
Date of Order 11-01-2017 W.P.No.27635/2016
Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
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This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the impugned notification
dated 21.4.2016 [Annex-A] issued by the R-1, in so far as
reservation made to the post of Adhyaksha at K.R.Pet Taluk
Panchayat of Mandya District Taluk Panchayath are concerned, as
the notification ultra vires the Rule-5[A] of the Karnataka
Panchayath Raj [Reservations of office of Adhyaksha and
Upadhyaksha of Taluk Panchayath] Rules, 2005.
This Petition coming on for hearing this day, Court made the
following:
ORDER
1. In this petition, the challenge to the reservations for the posts of 'President and Vice President' of Taluk Panchayats for the 2016 elections has already been turned down by this Court in a recently rendered judgment on 06/01/2017 in W.P.Nos.22740- 762/2016 (Smt. Latha and others Vs. State of Karnataka and others), in which dismissing the writ petitions, after discussing the various case laws cited on both sides, this Court has upheld the preliminary objection of the State against the maintainability of these writ petitions and held as under:
18. On a careful analysis of the rival contentions and the relevant case laws relied upon by both the sides and a brief over view of the facts brought on record, this Court has arrived at a Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.3/14
considered conclusion that these writ petitions cannot be entertained and are not maintainable and deserve dismissal at the threshold on the basis of preliminary objection of bar of jurisdiction under Article 243-O of the Constitution of India, for the following reasons:
19. The first and foremost reason is the constitutional bar contained in Article 243-O of the Constitution of India. The validity of any law relating to de-limitation of constituencies or the allotment of seat to such constituencies cannot be examined by Courts in view of Clause (a) of Article 243-O of the Constitution of India. This Court does not find any force in the contention raised by the learned counsel for petitioners that the words "allotment of seats to such constituencies" would apply only to the allocation of seats or number of wards or posts of members for a particular Gram Panchayat, Taluk Panchayat or Zilla Panchayaths.
The words "allotment of seats" to particular Zilla panchayat even for the post of 'President' and 'Vice President' would fall within the ambit and scope of clause (a) of Article 243-O of the Constitution of India. The allotment of reservation to a particular seat of 'President' or 'Vice President' in a particular Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
4/14constituency or Zilla Panchayat cannot be excluded from the coverage of clause (a) so as to allow the judicial scrutiny of the same by the Courts by- passing the said bar of jurisdiction.
20. The purpose is simple and obvious, that is to maintain the sanctity, continuity and undisturbed process of election on the basis of which the democratic process can sustain and carried out. That is why the only remedy provided and allowed by the Constitution of India was by way of Election Petition before the competent Authority or Tribunal, after the elections have been concluded.
21. Clause (b) of Article 243-O clarifies this, when it stipulates " no election to any panchayat shall be called in question except in election petition...", the intention of constitutional bar is very clear, i.e. to provide an insulated and free from Court interference, election process. Any interference by the Courts of law at the beginning or during the process of election is bound to defeat the said avowed purpose of the constitutional mandate and it is wrong to say that merely because the writ petitions calling upon the Court to make a judicial scrutiny of such Notifications Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
5/14issued for the purposes of election for any post in Panchayat whether for 'Member' or for 'President' or 'Vice-President' is filed before the actual commencement of election process, by issuance of the Calendar of Events or fixing the date for filing nominations, holding of meetings for election, etc., can be so interfered is a wrong contention on the face of it.
22. The writ petitions on merits cannot obviously be decided in a matter of few days after having the stand of the Respondent - State in such cases and if commencement of election process itself was to be withheld or stayed to serve the effective purpose of such juridical scrutiny, that would be nothing but interference with the election process itself which is excluded by the constitutional bar contained in Article 243-O of the Constitution of India quoted above.
23. The only remedy therefore available to any aggrieved person is to file a properly instituted Election Petition in such cases. The contention of the learned counsel for the petitioners is that the election Tribunal could not have granted the relief as prayed for in the present writ petitions namely to quash the reservation of particular categories for Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
6/14particular Zilla Panchayat as it is bound to affect such reservations in all the Zilla Panchayats itself, destroys the argument of the petitioners. The aggrieved person can approach the election Tribunal only for the individual relief and not for sweeping reliefs for setting right the entire gamut of such reservations under the Rules. It is not necessary to grant all the relief which a petitioner has asked or prayed for.
24. The wider judicial scrutiny available under Writ jurisdiction cannot be invoked, merely because the election Tribunal cannot exceed its jurisdiction to go beyond a particular election for a particular Panchayat.
25. The impracticability and virtual impossibility of examining the fixation of reservations for the post of 'President' and 'Vice- President' of all the Zilla Panchayats is another big reason, which prevents this Court from exercising such a jurisdiction at the call of the petitioners for all such reservations in all the 30 Zilla Panchayats of the State. It is not beyond the pale of doubt that to apply the Rule of Rotation on the basis of Population Ratio as is prescribed in the Rules applicable for this purpose would require a Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
7/14mathematical tabulation of Population ratios of various categories and exercise of applying the principles of rotation with mathematical precision in a straight-jacket manner, if one were to undertake a hair-splitting exercise in writ jurisdiction as prayed for. This Court is simply not equipped to undertake any such exercise, even if one were to hypothetically assume, while it is not available to do so, that the constitutional bar does not apply in this case. As it is, the number of days taken for arguing this case by both the sides to explain the nitty-gritty and mathematics of the facts and figures qua the rotation of the reservation prima facie satisfies the Court that it is a mind-boggling exercise and it cannot be expected from the Courts to sit like statisticians or mathematicians to fix the reservations on the basis of the principles as contented by the petitioners before this Court.
26. There is no reason to make any inference of mala fides and ulterior motives merely because in a particular case, it may even prima facie appear that the reservation by rotation was altered by the State and in the background it may appear that it would sub-serve the cause of a political gain for the ruling party. Even if it were to be so, assuming Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
8/14while denying, the only remedy available to the petitioners is to file appropriate Election Petition before the competent election Tribunal and not otherwise.
27. The superior and pervasive impact of constitutional bar cannot be allowed to be breached under the guise of wide judicial discretion and jurisdiction available under Article 226 of the Constitution of India. Such temptation to exercise extra-ordinary jurisdiction under Article 226, should take a backseat to maintain the higher constitutional objectives of keeping the election process insulated and free from court interference, as contained in Article 243-O of the Constitution of India.
28. The fact that despite judgments on earlier occasions by this Court to the State Government to keep sufficient time-gap between the issuance of draft Notifications fixing such reservations and final Notifications, allowing the aggrieved persons to raise objections and considering the same fairly and objectively before issuing Final Notification for fixing such reservations though ought to have been followed and which prima facie in the present case also Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
9/14appears to have not been followed by the State Government, but that is not sufficient and strong enough a reason to upset the entire election process for the post of 'President' and 'Vice-President' of all the Zilla Panchayats and it is only for the State itself which is also equally bound by the judgments of the Court to fairly and genuinely comply with those directions in true letter and spirit.
29. One would have expected in such cases for fixing the category-wise reservations for the post of 'President'. and 'Vice-President' of Panchayats at the same time, when the elections for Members itself is initially announced, so that the objections, if any, for that could be well raised in time and considered by the competent authorities in the State Government and it would have been much better if the objections are decided by a speaking and reasoned quasi-judicial order by such competent authorities in a transparent manner before the final Notifications fixing the reservations are issued and still leaving a reasonable time for the aggrieved persons to seek judicial scrutiny of such quasi- judicial orders, deciding the objections well ahead of the commencement of the election process itself. But at the fag-end of such time period or just before Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
10/14the commencement of the election process or after the commencement of the election process, no such judicial scrutiny can be undertaken and in the considered opinion of this Court, the bar under Article 243-0 would get attracted in such cases.
30. There is an imminent need of passing a quasi-judicial order complying with the principles of natural justice, deciding the objections against the reservations proposed to be made under 2005 Rules as amended from time to time much ahead of holding these elections for the post of President & Vice president of Panchayats, which orders alone can be made subject to judicial scrutiny much prior to the issuance of the final Notification, fixing seat reservations, in exercise of subordinate legislative exercise, which is beyond the judicial scrutiny by virtue of bar under Art.243-O of the Constitution of India. This exercise should be undertaken at the time of initiating the steps for holding the elections for the membership of Panchayats themselves. The true democratic process with transparency is the tenet of free & fair elections, which is the constitutional ethos of our Republic.
Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
11/1431. In the present case, no such order of the Principal Secretary to whom such objections were addressed by the petitioners has been produced before this Court, so as to examine the correctness of the reasons assigned by the State Government for not fixing the reservations for these posts strictly in accordance with the Rules on the basis of the category-wise population figures and previous reservations on a rotation basis as explained from time to time by this Court, that is, once a seat has been fixed for a particular category, that rotation has to be carried for that category for all the Zilla Panchayats in a cyclical manner to complete the circle before such reservation again comes back to that particular Zilla Panchayat.
32. However, it is again clarified that except examining the validity of such a quasi-judicial order passed by the competent Authority of the State Government deciding such objections, no interference can be made in the election process under the Act of 1993 by Courts in view of Article 243-O of the Constitution of India.
Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
12/1433. Therefore, it is for the State Government to provide sufficient time-gap between notifying the draft reservations for these posts and receiving objections, if any, and passing such quasi-judicial orders as stated above and then issue the final Notification for commencement of the election process for these posts, under the Act of 1993.
34. The decision of the objections at a point of time just near the commencement of election process for these posts also in effect renders such judicial scrutiny impractical and impossible and attracts the constitutional bar to such judicial scrutiny. The concerned Rules are therefore required to be amended to provide for such time- frame, leaving sufficient time period of, say at least six months, for such judicial scrutiny of the quasi- judicial orders deciding such objections.
35. The earlier judgments of this Court providing for six months' period between draft Notifications and final Notifications providing for such reservations, including the process of filing objections and decision thereon by the competent authorities also does not leave any sufficient time Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
13/14for the judicial scrutiny in writ jurisdiction, looking to the burden of workload on the Courts and at least a period of six months should be left between the aforesaid quasi-judicial orders and the commencement of election process for these posts, for the Courts to pronounce upon the validity of such quasi-judicial orders passed by the competent authority of the State.
36. For the aforesaid reasons, these writ petitions deserve to be dismissed upholding the Preliminary Objection of the State and they are accordingly dismissed. In view of this, facts of individual Zilla Panchayat reservations for these posts are not required to be discussed separately.
52. In view of the aforesaid legal position and the reasons assigned above, this Court is satisfied that these writ petitions cannot be entertained on merits and upon factual scrutiny of the reservations fixed category-wise in the election for the post of 'President' and 'Vice-President' for the year 2016 of Zilla Panchayats, the same cannot be quashed and no mala fides are established on the part of the State to have fixed these reservations for any illegal purpose and the writ Date of Order 11-01-2017 W.P.No.27635/2016 Sri Khaleel Ahmad Vs. The State of Karnataka & Ors.
14/14jurisdictions in the present case is barred by Article 243-O of the Constitution of India and the writ petitions are therefore liable to be dismissed accordingly. Accordingly the writ petitions are dismissed. No order as to costs.
2. In view of the dismissal of those writ petitions upholding the Preliminary objection raised by the Respondent - State, this writ petition is also liable to be dismissed in the same terms.
The challenge to the Notification dated 21/04/2016 therefore fails on the same ground and this writ petition is also dismissed in the same terms. No order as to costs.
Sd/-
JUDGE BMV*