Karnataka High Court
Smt Kalpana Manjunath vs State Of Karnataka on 5 January, 2021
Author: R Devdas
Bench: R. Devdas
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
BEFORE
THE HON' BLE MR.JUSTICE R. DEVDAS
WRIT PETITION NO.11725 OF 2020 (LB-RES)
C/W
WRIT PETITION NO.6398 OF 2020(LB-ELE)
IN W.P. NO.11725 /2020
BETWEEN
1. SMT KALPANA MANJUNATH
W/O SRI MANJUNATH
AGED ABOUT 33 YEARS
EX-MEMBER ARISHINKUNTE
GRAM PANCHAYAT
R/AT NO.48, BEHIND CIVIL COURT
JAKKASANDRA
NELAMANGALA TOWN
BENGALURU RURAL DISTRICT-562123
2. SRI H RAJANNA
S/O LATE HONNAPPA
AGED ABOUT 65 YEARS
EX-MEMBER ARISHINKUNTE
GRAM PANCHAYAT
R/AT NO.377, ADARSH NAGAR
ARISHINKUNTE VILLAGE
KASABA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562123
2
3. SRI KEMPURAJU
S/O LATE HONNAPPA
AGED ABOUT 45 YEARS
EX-MEMBER VAJARAHALLI GRAM PANCHAYAT
R/AT, VAJARAHALLI VILLAGE
KASABA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562123
...PETITIONERS
(BY SRI SUNIL S RAO, ADVOCATE FOR
SRI T SESHAGIRI RAO, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LOCAL BODIES AND
MUNICIPAL ADMINISTRATION
VIDHANA SOUDHA
BENGALURU-560001
2. DIRECTORATE OF MUNICIPAL
ADMINISTRATION,
DR. AMBEDKAR VEEDHI
VISHWESWARAIAH TOWER
SAMPANGIRAMA NAGAR
BENGALURU-560001
3. THE CITY MUNICIPAL COUNCIL
REPRESENTED BY ITS COMMISSIONER
NELAMANGALA
BENGALURU RURAL DISTRICT-562123
4. THE DEPUTY COMMISSIONER
BENGALURU RURAL
CURRENTLY ADMNINISTRATOR
CITY MUNICIPAL COUNCIL NELAMANGALA
OFFICE AT MINI VIDHAN SOUDHA
BEERASANDRA VILLAGE
3
CHAPARADA KALLU GATE
KUNDANA HOBLI
DEVANAHALLI TALUK
DEVANAHALLI-DODDABALLAPURA ROAD,
BENGALURU RURAL DISTRICT-562110
5. THE STATE ELECTION COMMISSIONER
FOR LOCAL BODIES
REPRESENTED BY ITS COMMISSIONER
NO.8, 1ST FLOOR
CUNNINGHAM ROAD
BENGALURU-560052
6. SRI ANJANAMURTHY
S/O L N NAGARAJU
AGED ABOUT 38 YEARS,
COUNCILOR,
WARD NO.1,
PRASANNA ANJENEYA TRUST,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
7. SMT RAJAMMA
W/O A PILLAPPA
AGED ABOUT 45 YEARS,
COUNCILOR,
WARD NO.2,
RAYAN NAGAR
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
8. SMT N G SUJATHA
W/O MUNIYAPPA
AGED ABOUT 43 YEARS,
COUNCILOR,
WARD NO.3,
BILLAINAGAR - JAYANAGAR,
4
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
9. SRI R SUNIL MOOD,
S/O L RUDRA NAIK,
AGED ABOUT 47 YEARS,
COUNCILOR,
WARD NO.4,
KOTE BEEDI JAYADEVA HOSTEL ROAD,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
10. SRI ANAND G
S/O LATE GANGANNA
AGED ABOUT 39 YEARS,
COUNCILOR,
WARD NO.5,
DEVANGA BEEDI,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
11. SRI N S GANGADHAR RAO
S/O L SIDDOJI RAO
AGED ABOUT 43 YEARS,
COUNCILOR,
WARD NO.6,
MARALONI ROAD,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
12 SRI PURUSHOTHAM A
S/O ANDANAPPA
AGED ABOUT 38 YEARS,
COUNCILOR,
5
WARD NO.7,
CHANNAKESHAVA GUDI ROAD,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
13. SMT SHARADA UMESH
W/O UMESH
AGED ABOUT 42 YEARS,
COUNCILOR,
WARD NO.8,
HIPPE ANJANEYASWAMY EXTENSION,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
14. SMT DASKSHAYINI RAVIKUMAR
W/O RAVI KUMAR
AGED ABOUT 43 YEARS,
COUNCILOR,
WARD NO.9,
JMC EXTENTION,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
15. SMT POORNIMA SUGGARAJU
W/O SUGGARAJU
AGED ABOUT 30 YEARS,
COUNCILOR,
WARD NO.10,
GAJARIYA EXTENSION,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
16. SRI GANESH N
S/O NAGARAJU
AGED ABOUT 48 YEARS,
6
COUNCILOR,
WARD NO.11,
CHANNAPPA EXTENSION,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
17. SRI ANJANAPPA
S/O NARASIMHAIAH
AGED ABOUT 64 YEARS,
COUNCILOR,
WARD NO.12,
BANK COLONY,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
18. SRI B PADMANABH
S/O B T BANANJAPPA,
AGED ABOUT 52 YEARS,
COUNCILOR,
WARD NO.13,
WEAVERS COLONY,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
19. SRI K M SHIVKUMAR
S/O K R MAYANNA
AGED ABOUT 47 YEARS,
COUNCILOR,
WARD NO.14,
SUBHASHNAGAR,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
20. SMT BHAGYAMMA
W.O NARASIMHAMURTHY N V
7
AGED ABOUT 40 YEARS,
COUNCILOR,
WARD NO.15,
GANESH RAO EXTENSION,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
21. SMT BHARATHI BAI
W/O NARAYAN RAO
AGED ABOUT 48 YEARS,
COUNCILOR,
WARD NO.16,
IN AND AROUND SWAN SILK,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
22. SRI PRADEEP C
S/O LATE CHANNABASAVAIAH
AGED ABOUT 36 YEARS,
COUNCILOR,
WARD NO.17,
MASJID ROAD, SUBHASHNAGAR
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
23. SRI CHETHAN N M
S/O LATE NAGARAJU
AGED ABOUT 35 YEARS,
COUNCILOR,
WARD NO.18,
GOVINDAPPA LAYOUT,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
8
24. SRI NARASIMHA MURTHY
S/O LATE MARIYAPPA
AGED ABOUT 47 YEARS,
COUNCILOR,
WARD NO.19,
VIJAYANAGAR,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
25. SMT LATHA HEMANTHKUMAR
S/O HEMANTH KUMAR
AGED ABOUT 45 YEARS,
COUNCILOR,
WARD NO.20,
PARAMANNA EXTENSION
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
26. SMT LOLAKSHI
W/O GANGADHAR
AGED ABOUT40 YEARS,
COUNCILOR,
WARD NO.21,
INDIRANAGAR,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
27. SMT SUDHA
W/O KRISHNAPPA K
AGED ABOUT 48 YEARS,
COUNCILOR,
WARD NO.22,
SADASHIVANAGAR,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
9
28. SMT PUSHPALATHA
W/O MARE GOWDA
AGED ABOUT 42 YEARS,
COUNCILOR,
WARD NO.23,
DADAPEER EXTENSION,
TOWN MUNICIPAL COUNCIL,
NELAMANGALA,
BANGALORE RURAL DISTRICT - 562123.
...RESPONDENTS
(BY SRI DHYAN CHINNAPPA, AAG A/W
SMT PRATHIMA HONNAPUR, AGA FOR R1, R2 & R4
SMT VAISHALI HEGDE, ADVOCATE FOR R5
SRI A NAGARAJAPPA, ADVOCATE FOR R6 TO R28
SRI RAMESH KUMAR, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE CIRCULAR
PASSED BY R-1 DTD 3.8.2020 AS FOUND AT ANNEXURE-A
PROPOSING TO RECALL THE APPOINTMENT OF ADMINISTRATOR
AND RESULTING IN NOMINATING 23 MEMBERS TO NEWLY FORMED
CITY MUNICIPAL COUNCIL NELAMANGALA BY BACKDOOR
METHODS AS BEING VOID AB-INITIO AND CONTRARY TO STATUTE
AND ETC.
IN W.P. NO.6398/2020
BETWEEN
1. SMT KALPANA
W/O SRI M B MANJUNATH,
AGED ABOUT 33 YEARS,
MEMBER,
ARISHINKUNTE GRAM PANCHAYATH,
R.AT NO.43, BEHIND CIVIL COURT,
JAKAKSANDRA,
10
NELAMANGALA TOWN,
BENGALURU RURAL DISTRICT-562123
2. SRI LAKSHMINARAYANA
S/O LATE MURTHARAYAPPA,
AGED ABOUT 44 YEARS,
MEMBER AND PRESIDENT,
ARISHINKUNTE GRAM PANCHAYATH,
R/AT ADARSH NAGAR,
ARISHINKUNTE VILLAGE,
KASABA HOBLI,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562123
3. SRI H RAJANNA
S/O LATE HONNAPPA,
AGED ABOUT 65 YEARS,
MEMBER
ARISHINKUNTE GRAM PANCHAYAT,
R/AT NO.377,
ADARSH NAGAR,
ARISHINKUNTE VILLAGE,
KASABA HOBLI,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562123
4. SRI KEMPURAJU
S/O LATE KEMPAIAH,
AGED ABOUT 45 YEARS,
MEMBER,
VAJARAHALLI GRAM PANCHAYAT,
R/AT VAJARAHALLI VILLAGE,
KASABA HOBLI,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562123
...PETITIONERS
(BY SRI SUNIL S RAO, ADVOCATE FOR
11
SRI T SESHAGIRI RAO, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LOCAL BODIES
MUNICIPAL ADMINISTRATION,
VIDHANA SOUDHA,
BENGALURU-560001
2. DIRECTOR OF MUNICIPAL ADMINISTRATION
DR AMBEDKAR ROAD,
VISHWESWARAIAH TOWER,
SAMPANGI RAMA NAGAR,
BENGALURU-560001
3. THE CITY MUNICIPAL COUNCIL
REPRESENTED BY ITS COMMISSIONER,
NELAMANGALA,
BENGALURU RURAL DISTRICT-562123
4. THE STATE ELECTION COMMISSION
FOR LOCAL BODIES
REPRESENTED BY ITS COMMISSIONER,
NO.8, 1ST FLOOR,
CUNNINGHAM ROAD,
BENGALURU-560052
5. THE DEPUTY COMMISSIONER
BENGALURU RURAL,
MINI VIDHANA SOUDHA,
DEVANAHALLI-DODDABALLAPURA ROAD,
CHAPARADA KALLU,
BEERASANDRA VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110
12
6. THE NELAMANGALA CITY MUNICIPAL COUNCIL
OFFICE BEARER BEING
THE ASSISTANT COMMISSIONER,
DODDABALLAPURA SUB-DIVISION.
DODDABALLAPURA TALUK OFFICE ROAD,
DODDABALLAPURA.
7. THE TAHSILDAR
NELAMANGALA TALUK,
NELAMANGALA TALUK OFFICE,
NELAMANGALA TOWN,
BENGALURU RURAL DISTRICT.
...RESPONDENTS
(BY SRI DHYAN CHINNAPPA, AAG A/W
SMT PRATHIMA HONNAPUR, AGA FOR R1, R2, R5 & R7
SRI RAMESH KUMAR R V, ADVOCATE FOR R3
SMT VAISHALI HEGDE, ADVOCATE FOR R3
R6 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE TOWN
MUNICIPAL COUNCIL OF NELAMANGALA, STANDS DISSOLVED AND
CONSEQUENTLY HAS AGGLOMERATED ITSELF WITHIN THE NEWLY
CONSTITUTED CITY MUNICIPAL COUNCIL NELAMANGALA IN TERMS
OF ANNEXURE-D AND ETC.
THESE WRIT PETITIONS ARE HAVING BEEN HEARD AND
RESERVED ON 10.12.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE
FOLLOWING:
13
ORDER
The petitioners are elected members of Arashinakunte Gram Panchayat and Vajarahalli Gram Panchayat. The respondent-State Government issued a preliminary proclamation by virtue of powers vested under the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act' for short) intending to agglomerate the existing Nelamangala Town Municipal Council along with Arashinakunte Gram Panchayat, Basavanahalli Gram Panchayat and portions of Vajarahalli Gram Panchayat and Vishweshwarapura Gram Panchayat to constitute a City Municipal area to be known as Nelamangala City Municipal Council. Consent of the respective Gram Panchayats and Nelamangala TMC was obtained. Thereafter, in terms of Section 9 of the Act, the State Government declared an area of 24.49 sq. kms. falling within the erstwhile Nelamangala TMC, Arashinakunte Gram Panchayat, Basavanahalli Gram Panchayat and portions of Vajarahalli Gram Panchayat and Vishweshwarapura Gram Panchayat, constituting Nelamangala CMC, with a population of 70,393, followed by a Gazette notification dated 26.12.2019.
14
2. After the new CMC was constituted, the Deputy Commissioner, Bangalore Rural District, sent a communication dated 13.03.2020 to the Tahsildar, Nelamangala Taluk, stating that in the general elections 2019, the members to all the municipal areas have been elected following which the elections to the posts of President and Vice-President are to be held. It was stated that the post of President of Nelamangala TMC has been earmarked for General category and the post of Vice-President has been reserved for General (Woman) category. It was therefore directed that the elections to the post of President and Vice President of Nelamangala TMC is required to be held at the earliest. W.P.No.6398/2020 was filed on 18.03.2020 seeking a declaration that Nelamangala TMC stands dissolved and consequently agglomerated within the newly constituted CMC; a direction was sought to quash further process of election to the non-existing Nelamangala TMC; to quash the Circular dated 16.03.2020 issued by the Tahsildar calling for the meeting of the elected members of the Council to elect the President and Vice President and a further direction was also sought to the authorities to hold and conduct elections to the newly 15 constituted Nelamangala CMC and until then appoint the Deputy Commissioner as the Administrative Officer of Nelamangala CMC.
3. It is the contention of the petitioners that no sooner notice was ordered in W.P.No.6398/2020, the respondent-State Government issued an order dated 11.05.2020 directing the authorities to initiate ward-wise identification process of the category of population so as to fix the roster in reservation. Thereafter, by order dated 06.07.2020 the State Government appointed an Administrator in terms of Section 315 of the Act. Further, the State Government directed that the members of the erstwhile Nelamangala TMC shall continue to hold their position as Councillors of the newly constituted CMC and with respect to the panchayat areas which were amalgamated into the newly constituted CMC, the State Government shall nominate Councillors. After the said development, the petitioners filed W.P.No.11725/2020 calling in question the office circular dated 03.08.2020 issued by the Secretary, Urban Development Department, to the Director, Municipal Administration and the Deputy Commissioner, Bangalore Rural District. The petitioners are also seeking a mandamus directing the respondents to implement 16 the order dated 11.05.2020 at Annexure 'K' issued by the State Government to undertake the process of delimitation of wards based on the 2011 Census.
4. Learned Counsel Sri Sunil S. Rao, appearing for the petitioners submitted that during the course of these proceedings several developments have taken place, including the reservation of posts and issuance of notification for holding elections to the post of President and Vice President of the newly constituted Nelamangala CMC. It is also an admitted position that though elections were held to the other Municipal Councils, elections to the post of President and Vice President of Nelamangala CMC was not held. The learned Counsel submits that the issues that are required to be addressed are:
i) Whether the erstwhile members of the TMC along with persons nominated by the State Government in terms of Section 359(1)(j) and Section 360(d) of the Act would constitute a Municipal Council in accordance with the provisions of the Act?
ii) Whether such a Council could continue for the
remainder of the period? Or
17
iii) Whether ward-wise delimitation is required to be undertaken and fresh elections are required to be held to the newly constituted CMC within a period of six months as contemplated under Section 358 of the Act?
5. Learned Counsel for the petitioners submits that if an entire panchayat area is converted into smaller urban area, Section 357 of the Act, would take care of such a situation. Similarly, if a Town Municipal area is converted into City Municipal area, the same is governed by Section 361 of the Act. On the other hand, if an entire panchayat area is absorbed into smaller urban area, Section 359 of the Act would govern the situation. If a part of the panchayat area is absorbed into a smaller urban area, then Section 360 of the Act would govern such a situation. The learned Counsel submits that in the present case since a combination of absorption/agglomeration has taken place, three provisions are to be looked into viz., Sections 359, 360 and 361. It is submitted that since clause (j) of sub-section (1) of Section 359 provides that until the reconstitution of the Municipal Council, one person ordinarily resident in the local area absorbed in the smaller urban area is required to be nominated by the Government. Such 18 nominated person shall be an additional Councillor of the Municipal Council. Similarly Clause (d) of Section 360 also provides for nomination by the Government, if a part of the panchayat area absorbed into the smaller urban area is having not less than one thousand population. Learned Counsel submits that there is no dispute that the two portions of Vajarahalli and Vishweshwarapura Gram Panchayats have a population of more than one thousand. However, it is submitted that such nominated persons will have no voting rights and they will not represent the interest of the residents of the Gram Panchayats and part of the Gram Panchayat areas. The learned Counsel draws the attention of this Court to Section 358 and submits that the said provision mandates the Government to take steps in accordance with Section 11 for the purpose of determining the number of Councillors for holding elections for the new Municipal Council, within a period of six months from the date on which the interim Municipal Council has been constituted.
6. It was also pointed out from the communication dated 11.05.2020 made by the Secretary to Government, Urban Development Department to the Director of Municipal 19 Administration and the Deputy Commissioners that the authorities were directed to commence the process of delimitation and ward- wise reservation based on the population to the newly constituted CMCs, which includes Nelamangala CMC. Attention of this Court was also drawn to the notification dated 06.07.2020 whereby the Administrator was appointed in terms of Section 315 of the Act, while categorically stating that the appointment of the Administrator shall continue till a newly elected Council is put in place. The learned Counsel for the petitioners, while pointing out to an endorsement dated 09.11.2020 issued by the Chief Officer of the newly constituted Nelamangala CMC, submits that the process of delimitation, ward-wise reservation based on the population has been completed and the same has been submitted to the State Government on 06.11.2020. It was pointed out that the Government itself was of the clear opinion that in terms of Section 358 of the Act, election is required to be held within a period of six months to the newly constituted CMCs. The learned Counsel also placed reliance on a decision of the Apex Court in the case of State of Maharashtra and Others Vs. Jalgaon Municipal Council and Others (2003) 9 SCC 731.
20
7. Per contra, the learned Additional Advocate General Sri Dhyan Chinnappa, appearing for the respondent-State submitted that the provisions in Section 361 of the Act leaves no room for any doubt that whenever a Town Municipal area is converted into a City Municipal area, there is no requirement of holding a fresh election to the Council. The members of the Town Municipal Council shall continue as members of the City Municipal Council. Insofar as Sections 359 and 360 are concerned, it is submitted that Sections 359(1)(j) and 360(d) of the Act provide for nomination by the Government, of a person who is ordinarily a resident of such Municipal area or part of a Municipal area to be the additional Councillor of the Smaller Urban area. It is submitted that such additional Councillors, nominated by the Government are not circumscribed by or appointed at the pleasure of the Government. Nothing in the provisions would indicate that such additional Councillors are appointed either until further orders or at the pleasure of the Government. Further, while pointing out to the definition of the word 'Councillor' in Section 2(6) of the Act, it was submitted that a Councillor is a person who is legally a member of a Municipal Council or a Town Panchayat. Further, it is submitted 21 that Section 11(1)(b) of the Act empowers the Government to nominate persons having special knowledge and experience in municipal administration or matters relating to health, town planning or education or social workers. While referring to the proviso to clause (b) of sub-section (1) of Section 11 of the Act, it is submitted that it is clearly provided that such nominated persons shall not have the right to vote in the meetings of the municipal council. Whereas in Section 359 (1)(j) and Section 360(d), the persons nominated by the Government are called 'additional councillors', which is different from the persons nominated under Section 11 of the Act, and therefore, the additional councillors cannot be equated to the persons nominated under Section 11. It is therefore submitted that the additional councillors nominated by the Government in terms of Section 359(1)(j) and Section 360 (d) have voting rights and they clearly represent the interest of the population they represent.
8. The learned Additional Advocate General further submits that the words 'until the reconstitution of the Municipal Council' used in Section 359(1)(j) and Section 360(d) would only mean, reconstitution after the full term of the Council is completed. It is 22 therefore the submission of the learned AAG that the provisions under Chapter XVI of the Act, do not contemplate holding of a general election consequent to the absorption of the two Gram Panchayats and portion of two other Gram Panchayats into Nelamangala TMC, until the full term of the Council is completed.
9. Learned Counsel Sri A.Nagarajappa, appearing for respondents No.6 to 28 in W.P.No.11725/2020, who are the elected members of the erstwhile Nelamangala TMC, submits that there can be no doubt that in terms of Section 361 of the Act, when the TMC was converted into CMC, the members of the TMC would continue as members of the newly constituted CMC. The learned Counsel submits that the election to the Council was held on 14.05.2019 and the candidates elected to 23 wards of the TMC were notified in the Gazette notification dated 03.06.2019. It is submitted that though several notifications were issued by the State Government notifying the reservation to the posts of President and Vice President of the Municipal Councils, the notifications were stayed by this Court and consequently elections to the posts of President and Vice President could not be held. It is submitted that finally, the elections to the posts of President and Vice President of various 23 Municipal Councils were held during the month of November, 2020, but in view of the stay granted by this Court in these proceedings, the elections to Nelamangala CMC was not held. It is submitted that the petitioners who are admittedly not the members of the Council are prosecuting these writ petitions as if it is a Public Interest Litigation. In other words, it is submitted that the petitioners have no manner of right or interest in the affairs of the Municipal Council and at the instance of such persons, this Court should not pass orders which would be detrimental to the interest and continuation of the Municipal Council.
10. Heard the learned Counsel Sri Sunil S.Rao, for the petitioners, Sri Dhyan Chinnappa, learned Additional Advocate General for the respondent-State, Smt.Vaishali Hegde, learned Counsel appearing for the State Election Commission and Sri A.Nagarajappa, learned Counsel appearing for the respondents No.6 to 28 (the elected members of erstwhile Nelamangala TMC) and perused the petition papers.
11. The questions that arise for consideration are: 24
i) whether the erstwhile members of the TMC along with persons nominated by the Government in terms of Section 359(1)(j) and Section 360(d) of the Act, would constitute a City Municipal Council?
ii) whether such a Council could continue for the remainder of the term of the Council? Or
iii) whether a general election is required to be held to reconstitute the Municipal Council, within a period of six months, as contemplated in Section 358 of the Act?
12. Chapter XVI of the Act contains the provisions for conversion of Panchayat area into a smaller urban area and for amalgamation and ward of smaller urban areas etc. Provision is made under this Chapter to address the requirement of conversion of panchayat area into smaller urban area (Section 357); absorption of a panchayat area into smaller urban area (Section
359); absorption of a part of Panchayat area into a smaller urban area (Section 360); conversion of Town Municipal areas into City Municipal areas (Section 361); conversion of City Municipal areas into Town Municipal areas (Section 362); amalgamation of two contiguous smaller urban areas (Section 363).
25
13. As rightly submitted by the learned Counsel for the petitioners, in the present case no one single provision under Chapter XVI may be sufficient to consider the case on hand. Since one Town Municipal area, two Gram Panchayat areas and portions of two other Gram Panchayat areas are agglomerated and constituted into a new City Municipal area, Sections 359, 360 and 361 are brought into operation. There is no gain saying, in terms of Section 361 of the Act, if only the area constituting Nelamangala TMC was upgraded as City Municipal area, there is no reason to contemplate holding of fresh general election to reconstitute the Municipal Council. However, admittedly, since two panchayat areas of Arashinakunte Gram Panchayat and Basavanahalli Gram Panchayat along with portions of Vajarahalli and Vishweshwarapura Gram Panchayats are taken into the folds of the newly constituted CMC, the effect of such amalgamation whether would require reconstitution of the Municipal Council has to be considered.
14. A close reading of Sections 361 and 362, where either a smaller urban area is converted into a larger urban area or vice-versa, rightly, do not contemplate reconstitution of the Council. On the other hand, under Section 357 of the Act, where a 26 panchayat area is converted into smaller urban area, the erstwhile Gram Panchayat ceases to exist or function. An interim municipal council consisting of persons who were earlier members of the Gram Panchayat and the Adhyaksha and Upadhyaksha of the Gram Panchayat are deemed to be the President and Vice President of the interim municipal Council. Similarly, under Sections 359 and 360 provision is made for reconstitution of the Municipal Council.
15. Provision is made in Section 359 and 360 where a panchayat area or part of the panchayat area which were governed under the provisions of the Karnataka Panchayat Raj Act, 1993 and later absorbed into smaller urban area, to meet the consequences that would ensue, viz., vesting of the unexpended balance of the Gram Panchayat's fund, its property including arrears of rates, taxes and fees and all rights and powers which hitherto vested into the Panchayat in the Municipal Council as the municipal fund. Provision is made to save all appointments, notifications, notice, tax, order, scheme, license, permission, rule, byelaw or form, made, issued, imposed or granted under the Karnataka Panchayat Raj Act, 1993, immediately before the said date in respect of the said local area, to continue in force and deemed to have been made 27 by the smaller urban area. Provision is made to save all budget estimates, assessments, assessment lists, valuations or measurements made or authenticated under the Karnataka Panchayat Raj Act, 1993 immediately before the said date in respect of the said local area, to continue in force and deemed to have been made by the smaller urban area. Provision is also made for saving all contracts, debts and obligations incurred or made by or on behalf of the panchayat and deemed to be have been incurred or made by the Municipal Council. Similarly all appointments of Officers and servants made by the panchayat are also saved by the deeming provisions. Under such circumstances, in the wisdom of the legislature, when the words 'until the reconstitution of the municipal council' are used, in the considered opinion of this Court, it can only mean that the mandatory provision of Section 358, requiring the Government to hold elections within a period of six months is made applicable to Sections 359 and 360.
16. Unmistakably, one of the reason behind the requirement of reconstitution of the Council is to confer legitimacy of the constitution of the elected body, which was earlier elected in terms of the Karnataka Panchayat Raj Act, 1993, and its continuation as 28 an elected body under the provisions of the Karnataka Municipalities Act. The Legislature rightly foresaw a challenge that could be raised to continuation of the elected body under a different enactment. A body elected under a particular enactment would have no legitimacy to be continued as an elected body under a different enactment. Therefore, the legislature has made provision for reconstitution of the Council, by holding elections under the provisions of the Karnataka Municipalities Act.
17. In the considered opinion of this Court, Section 358 of the Act, is a general provision applicable to all the circumstances contemplated under Chapter XVI of the Act, barring circumstances where a Town Municipal area is converted into a City Municipal area or vice-versa, as provided in Sections 361 and 362 of the Act.
18. Provision has been made to meet all contingencies when the State Government undertakes the exercise of absorption/ conversion/amalgamation as provided under Chapter XVI of the Act, to install an interim municipal council to ensure smooth transition. None of the provisions in Chapter XVI provides for appointment of an Administrator in the interregnum. On the other hand, the word 'municipal council', for the purposes of Chapter XVI 29 has been defined to include an administrator or Officer appointed to exercise the powers and to perform the functions of a municipal council under Sections 315 or 316 of the Act. It takes care of a situation where absorption/conversion/amalgamation under Chapter XVI is made during the term of an Administrator.
19. Therefore, while considering a case falling under Sections 359, 360 and 361 of the Act, regard should be had to the conscious omission of the use of the words 'interim municipal council' and 'reconstitution' in Section 361, where a body duly elected under the provisions of the Karnataka Municipalities Act, could continue without such legal impediment. On the other hand, under Section 357 where a panchayat area is converted into a smaller urban area, a body elected under the provisions of the Karnataka Panchayat Raj Act, could not be legitimately declared as a body duly elected under the provisions of the Karnataka Municipalities Act. Therefore, provision is made to constitute an interim municipal council consisting of the elected members of the Gram Panchayat, to be headed by the Adhyaksha and Upadhyaksha of the Gram Panchayat as President and Vice President of the interim municipal council. 30
20. Whereas, under Sections 359 and 360 of the Act, where a panchayat area or part of panchayat area is absorbed into smaller urban area, no express provision is made for constitution of an interim municipal council, but provision is made under clause (j) of sub-section (1) of Section 359 and clause (d) of Section 360 for reconstitution of the Municipal Council in accordance with the provisions of the Act. The absence of any provision for constituting an interim municipal council in Sections 359 and 360 cannot be interpreted in the manner suggested by the learned Additional Advocate General. Moreso, in the present context, where two panchayat areas and parts of two other panchayat areas along with a Town Municipal area being agglomerated into a City Municipal area. In such circumstances, unless there is reconstitution, the erstwhile councillors of Nelamangala TMC cannot contend that they continue as councillors of the new CMC and that nomination of one person each from the panchayat area would legitimately constitute a municipal council of the City Municipal area.
21. The legitimacy of the continuance of the Council consisting of members of the erstwhile TMC along with the members nominated by the Government in terms of clause (j) of 31 sub-Section (1) of Section 359 and clause (d) of Section 360, is required to be tested on the touchstone of the Constitutional provisions. Article 243R mandates all the seats in the Municipality to be filled up with persons chosen by direct election. Article 243T mandates reservation of seats for Scheduled Castes and Scheduled Tribes in proportion to the population of Scheduled Castes and Scheduled Tribes within the municipal area. One-third of all category of seats are required to be reserved in favour of women. Article 243U mandates duration of five years for every municipality. No amendment is permitted which would cut short the duration stipulated under Article 243U. Even if the municipality is dissolved, election is mandated to be held within six months from the date of dissolution. Such election shall not be required if the remainder of the term of the elected body is less than six months. Most importantly, Article 243W provides that the State Legislature may, by law, endow the municipalities with such powers and authority as may be necessary to enable them to function as institutions of self- government and such law may contain provisions for the devolution of powers and responsibilities upon municipalities, subject to such conditions as may be specified therein.
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22. In consonance with the mandate provided under Articles 243R and 243T, provision has been made in Section 11 of the Act stipulating the number of councillors in proportion to the population of the municipal area. In terms of the said Table as provided in Section 11(1)(a) of the Act, since Nelamangala TMC had population of less than forty thousand, 23 councillors to be chosen from 23 wards, was provided for. Now that the population of the newly constituted Nelamangala CMC being 70,393, as per the Gazette notification dated 26.12.2019, 31 councillors are required to be provided for, to be chosen from as many wards, in terms of the said provision. Therefore, in order to satisfy the requirement of law, as provided in the Act and to meet the requirements of the Constitutional provisions, delimitation of the wards, fixation of reservation of seats in terms of Section 13 of the Act and thereafter holding elections to reconstitute the Municipal Council, in terms of Section 358 of the Act is the only recourse which would bring legitimacy to the municipality.
23. Section 17 of the Act provides that a general election of the Councillors shall be held for the purpose of constituting a Municipal Council for the first time or before the expiry of the period 33 for which an Administrator is appointed under Section 315 or before the expiry of the period specified under Section 316. Whereas Section 358 provides that the Government shall, within a period not exceeding six months from the date on which the interim municipal council has been constituted, take steps in accordance with Section 11 for the purpose of determining the number of councillors of, and for holding elections for a new Municipal Council. As noticed earlier, since the words 'interim municipal council' are not found in Sections 359 and 360 and on the other hand, the words 'reconstitution' has been used, in the present context where all the three provisions i.e., Sections 359, 360 and 361 of the Act come into operation, the Government is required to hold elections within a period of six months, as provided in Section 358. On the other hand, if the exercise undertaken by the Government would amount to constituting a new Municipal Council, even then, in terms of Section 17, elections are required to be held before the expiry of the period for which an Administrator is appointed under Section 315.
24. One another aspect which would require examination is the appointment of Administrator. Section 315 provides for appointment of an Administrator only under the circumstances 34 mentioned therein. Section 315 does not provide for appointment of an Administrator while an exercise is undertaken by the Government under Chapter XVI of the Act. This is also not a case of dissolution of the elected body. Therefore, an Officer could not be appointed by the Government to take care of the affairs of the Municipal Council, invoking Section 316. This Court, in the case of Vishwantah Akhandappa and Others Vs. State of Karnataka and Others, reported in (1980) 2 Kant LJ 398 has held that Section 315(1) of the Act, does not enable the State Government to appoint an administrator unless the term of office of the Municipal Councillors had expired. It was held that in the case of interim Municipal Councils coming into existence by reason of conversion of Panchayat areas into Town Municipal Council, the term of the interim Municipal Councillors continues until the general election are held and the first meeting of the new Municipal Council takes place. It was held that the term of the interim Municipal Councillors in terms of Section 358(2) shall come to end only when the first meeting of the new Municipal Council is held. Until such term, just because the State Government did not hold elections as stipulated 35 under Section 358(1), the Government could not appoint an Administrator.
25. It is also required to notice that the Hon'ble Apex Court, in the case of State of Maharashtra and Others Vs. Jalgaon Municipal Council and Others (supra), has held that law does not permit holding of an office as an administrator by any officer/officers beyond the first meeting of the Corporation or a period of six months from the date of specification of an area as a larger urban area. Thus the maximum period for which an administrator may be in office shall be six months and within such period the State Government and the State Election Commission shall positively bring the Municipal body in existence so as to take over the administration from the Administrator.
26. The issue raised before this Court, when considered in the backdrop of the Constitutional provisions, the words of the Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others (2012) 4 SCC 407 could be quoted with authority. It was held that the amendment in the Constitution by adding parts IX and IXA confers upon the local self-Government a complete autonomy on the basic democratic unit unshackled from 36 official control. Thus, exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic setup of this country. The democratic setup of the country has always been recognized as a basic feature of the Constitution, like other features eg., supremacy of the Constitution, rule of law, principle of separation of powers, power of judicial review etc. It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive or its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State.
27. In the light of the above observations, it is imprudent on the part of the State Government to contend that its nominees appointed as additional councillors could continue for the rest of the term of the Council. A person nominated by the Government under the provisions of Chapter XVI of the Act can only continue till the Council is reconstituted, within a period of six months as 37 contemplated in Section 358 of the Act. An interpretation to the contrary will not withstand the test of compliance with the Constitutional provisions. The continuance of the present arrangement contravenes Article 243R since seats are not filled with persons chosen from direct elections; it contravenes Article 243T since reservation is not provided having regard to change in the demography; it contravenes the Table prepared under Section 11(1)(a) of the Act; most importantly, it goes against the Constitutional ethos of self-governance if the members nominated by the Government, are permitted to continue for the remainder of the period of the Municipal Council.
28. As was rightly pointed out by learned Counsel for the petitioners, even the State Government had expressed its intention to hold general elections to reconstitute the Council, as evident from the endorsement dated 09.11.2020 issued by the Chief Officer of the newly constituted Nelamangala CMC, wherein it was stated that the process of delimitation, ward-wise reservation based on the population has been completed and the same has been submitted to the State Government on 06.11.2020. In the notification dated 06.07.2020 whereby the Administrator was appointed in terms of 38 Section 315 of the Act, the Government had categorically stated that the appointment of the Administrator shall continue till a newly elected Council is put in place. In the communication dated 11.05.2020 made by the Secretary to Government, Urban Development Department to the Director of Municipal Administration and the Deputy Commissioners, it was directed to commence the process of delimitation and ward-wise reservation based on the population, to the newly constituted CMCs, which includes Nelamangala CMC. Contrary to such decisions and processes, a different stand is taken by the State Government in its statement of objections.
29. The issues raised are answered accordingly. For the reasons stated above, this Court is of the considered opinion that the respondent-State Government is required to hold elections to the Nelamangala CMC and reconstitute the Council in terms of Section 358 of the Act. Since it has been noticed by this Court that the process of delimitation and ward-wise reservation was completed and such information was placed before the State Government on 06.11.2020, as stated in the endorsement dated 39 09.11.2020 the elections are required to be completed at the earliest.
30. Consequently, the writ petitions are partly allowed. The respondent-State Government is hereby directed to hold elections to the Nelamangala CMC within an outer limit of two months from the date of receipt of a copy of this order.
It is ordered accordingly.
Sd/-
JUDGE JT/-