Karnataka High Court
Hanmanthraya S/O Ramanna Havaldar vs State Of Karnataka And Ors on 28 September, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28th DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
WRIT PETITION No.200303/2016 (LB-ELE)
Between:
Hanmanthraya
S/o Ramanna Havaldar
Aged about 63 Years
Occ: Retired Government Service
President of Sri Maharshi Valmiki Nayak
Sangha, Jewargi
Taluk: Jewargi, Dist: Kalaburagi
R/o C/o Office of the
Sri Maharshi Valmiki Nayak
Sangha, Jewargi
... Petitioner
(By Sri Ameet Kumar Deshpande, Advocate)
And:
1. State of Karnataka
Represented by its Principal Secretary
Department of Panchayatraj & Development
M.S. Building, Bangalore - 560 001
2. The Deputy Commissioner
Kalaburagi - 585 102
2
3. The Karnataka State Election Commission
Cunningham Road
Bangalore - 560 052
... Respondents
(Sri Shivakumar R. Tengli, AGA for R1 & R2;
Sri Veeranagouda Malipatil, Advocate for
Sri P.S. Malipatil, Advocate for R3)
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to quash the notification
dated 9.11.2015 in No. published in the
Karnataka Special Gazette, Part-3 No.1376 dated
11.11.2015 insofar as the number of seats reserved for the
persons belonging to Scheduled Tribe and the number of
seats reserved for the persons belonging to Scheduled
Caste in Kalaburagi Zilla Panchayat shown at Sl.No.27 of
the notification is concerned, a copy of which is at
Annexure-B.
This petition having been heard, reserved for orders
on 01.09.2020 and coming on for pronouncement of order
this day, the Court made the following:-
ORDER
A notification under Section 162 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (henceforth referred to as 'the Act of 1993') reserving seats to 3 Scheduled Castes and Scheduled Tribes in Zilla Panchayats in the State of Karnataka, was issued by the respondent No.3 on 09-11-2015 which was published in the Karnataka State Gazette on 11-11-2015. The petitioner herein is aggrieved by the reservation of one seat to Scheduled Tribes and 13 seats to Scheduled Castes out of the total 47 seats in Kalaburagi Zilla Panchayat.
2. The petitioner contends that he being a President of Sri Maharshi Valmiki Nayak Sangha submitted a representation dated 03-12-2015 wherein he claimed that as per the census of 2001, the population of Scheduled Tribes in Kalaburagi District was 1,54,000 which was shown as 11299. He claimed that as per the reservation provided for Scheduled Tribes in Zilla Panchayats 2 seats out of 47 seats were to be reserved for Scheduled Tribes but only one seat was reserved. Thus, he sought to rectify this anomaly. This representation was in itself vague and led one farther into the woods rather than 4 out. However, thankfully the counsel for the petitioner has assimilated the facts which is summarised thus.
3. As per the census of 2011, the total population of the Kalaburagi District was 25,66,326 of which, the total population of Scheduled Tribes was 65259 and constituted 2.54428% of the total population. Thus the number of seats in the Zilla Panchayat to be reserved for Scheduled Tribes would be 2.54428% of total number of seats (47) which corresponds to 1.19 seats and has to be rounded off to 2. It is stated that the total population of Scheduled Castes was 6,48,782 which constituted 25.28057% and thus the pro rata seats to be reserved for Scheduled Castes was 11.18% which could be rounded off to 12. It is thus contended that instead of the above, only one seat was reserved for Scheduled Tribes and 13 seats were reserved for Scheduled Castes in terms of the notification dated 09-11-2015. The case of the petitioner can be summarised by the following table:
5
Total SC ST Percentage No of Total
Population Population Population to Total seats to Seats
Population be Reserved
A B C D reserved
B x 100/A Dx47/100
C x 100/A
2566326 648782 25.28 11.88 13
65259 2.54 1.19 1
4. The petitioner thus aggrieved by the
notification dated 09-11-2015 has filed this writ petition seeking the following reliefs:
" Quash the notification dated 09-11-2015 bearing No. published in the Karnataka Special Gazette, Part-3 No.1376 dated 11-11-2015 insofar as the number of seats reserved for the persons belonging to the Scheduled Tribe and the number of seats reserved for the persons belonging to Scheduled Caste in Kalaburagi Zilla Panchayat shown at Sl.No.27 of the notification is concerned, a copy of which is at Annexure- B."
5. The claim of the petitioner is based on the words "the same proportion to the total number of seats to 6 be filled by direct election in the Zilla Panchayat as the population of the Scheduled Castes in the district or of the Scheduled Tribes in the district bears to the total population of the district" (underlining by Court) appearing in Section 162 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993. The learned counsel relied on the Judgment of Apex Court in Ganesh Sukhdeo Gurule vs Tahsildar, Sinnar and Others reported in 2019 (3) SCC 211 that a decimal in the context of no confidence motion should be read as a whole and contended that the same analogy has to be adopted in the present case and seats reserved to Scheduled Tribes in Kalaburagi Zilla Panchayat has to be treated as 2 though the proportionate seats is 1.19.
6. The respondent No.3 has filed its objections contending that the total rural population and the corresponding Scheduled Castes and Scheduled Tribes population in the rural areas has to be taken for the purpose of determining the proportion of reservation since 7 a Zilla Panchayat is constituted only for the rural areas in view of Section 158 of the Act of 1993 which provides for the establishment of Zilla Panchayat over the area excluding the smaller urban area/Municipal Corporation/ Town Panchayat or an Industrial Township. It is stated that the total rural population of the Zilla Panchayat area of Kalaburagi is 1730775 and the total seats is 47. The Rural Scheduled Casts population is 489697 which if divided by 13 seats reserved for them would yield 37669 population which would be represented by one seat. Since the Scheduled Tribes population is 50074 (which is less than 1.5 times of 37669 of Scheduled Castes population), only one seat was reserved for Scheduled Tribes. This seems to be based on Section 160 of the Act of 1993 which states that:
"the number of members to be elected from each taluk being fixed by the State Election Commission in accordance with the scale of one member for every population between thirty five thousand and forty-five thousand."8
7. This Court in terms of the Order dated 27-01-2016 had ordered that the elections to the Kalaburagi Zilla Panchayat shall be subject to the result of this writ petition. Since the term of the Zilla Panchayat would be five years which is yet to complete, this writ petition has not become infructuous and the relief sought for could still be considered on merits.
8. Heard Sri Ameet Kumar Deshpande, counsel for the petitioner, the Additional Government Advocate for the respondent Nos.1 and 2 and Sri P. S. Malipatil, counsel for respondent No.3.
9. The controversy in this case is:
Whether for the purposes of Section 162 of the Act of 1993, the population of the entire district and the population of Scheduled Castes and Schedules Tribes in the district has to be taken into account or the population residing within the area of the Zilla Panchayat?9
10. Part IX of the Constitution of India heralded the decentralisation of administration by establishment of local self governing institutions at the Village, Taluk and District levels. The controversy on hand can best be answered by referring to the relevant provisions of the Constitution of India and the Act of 1993 relating to the meaning of a District, Zilla Panchayat area, establishment, composition of Zilla Panchayat, the territorial limits of the Zilla Panchayat, the Electoral roll etc.
11. Article 243-B provides for the constitution of three tier Panchayats at the village, intermediate and District levels and the word "District" is defined as a district in a State under Article 243(a) and as a revenue district under Section 2(10) of the Act of 1993. Article 243(e) of the Constitution of India defines a "Panchayat area" as the territorial area of a Panchayat while Sub Section (43) of Section 2 of the Act of 1993 defines "Zilla Panchayat" as the Zilla Panchayat established under that Act.
10
12. Article 243-C of the Constitution of India holds a key answer to the question that has confronted this Court in this writ petition and is extracted below:
"243-C. Composition of Panchayats.--(1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats:
Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State.
(2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area".
(underlining by Court) 11
13. This makes it clear that for the division of territorial constituencies of a Zilla Panchayat, it is the ratio of the seats to the total population within the territorial area of the Panchayat that has to be taken into account.
14. Article 243-D of the Constitution of India is the focal provision which deals with the reservation of seats and this writ petition has to be tested on the anvil of this provision, which is extracted below:
"243-D. Reservation of seats.-- (1) Seats shall be reserved for--
(a) the Scheduled Castes; and
(b) the Scheduled Tribes, in every Panchayat 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 Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area (underlining by Court) and such seats may be allotted by 12 rotation to different constituencies in a Panchayat.
(2) XXXXX (3) XXXXX (4) The offices of the Chairpersons in the Panchayats at the village or any other level 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:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
Provided further that not less than one-third of the total number of offices of Chairpersons in 13 the Panchayats at each level shall be reserved for women:
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) XXXXX (6) XXXXX"
15. Thus, the reservation of seats to Scheduled Castes and Scheduled Tribes in the Zilla Panchayat is based on the proportionate ratio of Scheduled Castes and Scheduled Tribes to the total population in the Panchayat area. However, reservation of Chairpersons in the Zilla Panchayat is based on the proportionate ratio of Scheduled Castes and Scheduled Tribes to the total population in the State.
16. Section 158 of the Act of 1993 provides for the constitution of Zilla Panchayat which is the pivotal provision and is extracted below:
14
"Section 158 - Establishment of Zilla Panchayat and its incorporation (1) There shall be constituted for each district a Zilla Panchayat having jurisdiction over the entire district excluding such portions of the district as are included in a smaller urban area or are under the authority of a Municipal Corporation, a Town Panchayat or an Industrial Township (underlining by Court) constituted under any law for the time being in force:
Provided that a Zilla Panchayat may have its office in any area comprised within the excluded portion of the district and in such area may exercise its powers and functions over schools and other institutions under its control or management.
(2) Every Zilla Panchayat shall be a body corporate by the name of "......................................... Zilla Panchayat"
shall have perpetual succession and a common seal and subject to such restrictions as are imposed by or under this or any other 15 enactment, shall be vested with the capacity of suing or being sued in its corporate name, of acquiring, holding and transferring property movable or immovable, whether without or within the limits of the area over which it has authority of entering into contracts and of doing all things, necessary, proper or expedient for the purpose for which it is constituted."
17. Thus, the territorial limits of a Zilla Panchayat in a District in a State would invariably mean such area excluding the smaller urban area/Municipal area/ Industrial township.
18. Section 162 of the Act of 1993 which appears to be the cause for the case is extracted below:
"Section 162 - Reservation of seats (1) Seats shall be reserved by the State Election Commission in the Zilla Panchayat, -
(a) for Scheduled Castes; and
(b) for the Scheduled Tribes;
16
and 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 the Zilla Panchayat as the population of the Scheduled Castes in the district or of the Scheduled Tribes in the district bears to the total population of the district:
(underlining by Court) Provided that at least one seat each shall be reserved in a Zilla Panchayat for the persons belonging to the Scheduled Castes and the Scheduled Tribes.
(2) Such number of seats which shall, as nearly as may be one third of the total number of seats in a Zilla Panchayat shall be reserved by the State Election Commission for persons belonging to the Backward Classes.
Provided that out of the seats reserved under this sub-section, eighty per cent of the total number of such seats shall be reserved by the State Election Commission for the persons falling under category 'A' and the remaining twenty per cent of the seats shall be reserved by the State Election Commission for the persons falling under category 'B'.
17
(3) Not less than one third of the seats reserved for each category of persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes and those of the non-reserved seats in the Zilla Panchayat shall be reserved by the State Election Commission for women:
Provided that the seats reserved under sub-sections (1), (2) and (3) shall be allotted by rotation to different constituencies in the district:
Provided further that nothing contained in this section shall be deemed to prevent the persons belonging to the Scheduled Castes or Scheduled Tribes or Backward Classes or women for whom seats have been reserved in a Zilla Panchayat from standing for election to the non-reserved seats in such Zilla Panchayat."
19. Thus, while Article 243-D of the Constitution of India mandated reservation based on population within the Panchayat area, Section 162 deviated and mandated reservation based on population within the District. It is this that the petitioner has leveraged by contending that a "District" is defined under Section 2 (10) of the Act of 1993 18 as a revenue district. He therefore contends that the intendment of designing Section 162 of the Act of 1993 in the manner it is, is to ensure a uniform reservation across all Zilla Panchayath in the State of Karnataka.
20. It is relevant to note that under Section 163 of the Act of 1993, the respondent No.3 is entitled to divide the area within the jurisdiction of every Panchayat, for the purpose of election to such Zilla Panchayat into as many single member constituencies as the number of members required to be elected under Section 160 of the Act of 1993. Thus, the territorial limits of a Panchayat area should be the area excluding the municipal areas and the industrial township which invariably excludes the population in these areas for the purpose of establishment of a Zilla Panchayat. This is further fortified by the way in which an electoral roll under Section 165 of the Act of 1993 is determined for the elections to a constituency of a Zilla Panchayat:
19
"Section 165 - Electoral roll. -
The electoral roll of the Zilla Panchayat shall be prepared by the Assistant Commissioner subject to the superintendence, direction and control of the State Election Commission:
Provided that the electoral roll of the Karnataka Legislative Assembly for the time being in force for such part of the District as is included in any constituency of the Zilla Panchayat may be adopted for the purpose of preparation of electoral roll of the Zilla Panchayat for such constituency:
Provided further that the electoral roll for such constituency of the Zilla Panchayat shall not include any amendment, transposition, inclusion or deletion of any entry made after the last date for making nomination for the election of such constituency and before the completion of such election."
21. Thus, it is inevitable that while calculating ratio of the population of Scheduled Castes or Schedule Tribes for the purpose of reservation under Section 162 of the Act of 1993, it is only the population of the Panchayat area 20 that has to be looked into and not the population of the entire district. The justification by the respondent No.3 for reserving 13 seats to Scheduled Castes and 1 seat to Scheduled Tribes on the ground that the population of Scheduled Tribes is just above the average population that the Scheduled Castes would represent is wholly untenable and the reservation has to be based on the ratio of the total population of Scheduled Castes and Scheduled Tribes in the Panchayat with the total population of the Panchayat area. The argument of the learned counsel for the petitioner that reservation of seats should be based on the population of the district is too far fetched and would not fit into the scheme of reservation in local self governing institutions at the District level. This can be explained by the following illustration:
"If in a District there is a population of 40,00,000 (including population in smaller urban area/ municipal councils /industrial areas) and the number of seats in the Zilla 21 Panchayat (based on the territorial area excluding smaller urban area/ municipal councils /industrial areas) is 20 and if the population of Scheduled Castes in the State is 25% and Scheduled Tribes is 10% then the reservation based on Section 162 of the Act of 1993 would be 5 seats to Scheduled Castes and 2 seats to Scheduled Tribes. In addition, reservation is provided to Backward classes at 1/3rd of the total number of seats which would be 6 seats at the lower end. Thus, the total reservation would be 5 +2+6 + 13. However, Section 162 (2) of Act of 1993 mandates that the total reservation should not exceed 50%, which in this illustration would exceed and would violate the reservation pattern.
Suppose, each constituency out of 20 constituencies represent the maximum population of 45,000 as mandated under Section 160 of the Act of 1993 then the total 22 population in the Panchayat area would be 18,00,000 and if the Scheduled Castes population is 20% and Scheduled Tribes population is 2% then the reservation would be 4 seats to Scheduled Castes + 1 seat to Scheduled Tribes and 1/3rd to Backward Classes would be 6 + 4+1+6 =11 which could be reduced to 10."
22. As a matter of fact Part IX-A of the Constitution of India which relates to constitution of Municipalities, makes a pointed reference to proportionate reservation of seats based on the population of the municipal area. This is incorporated in Section 11 of the Karnataka Municipalities Act, 1964 and mandates that the reservation to Scheduled Castes and Scheduled Tribes in the number of seats to a council is based on the proportionate ratio of Scheduled Castes and Scheduled Tribes to the total population in the municipal area. Similarly, Section 7 of the Karnataka Municipal 23 Corporations Act, 1976 mandates reservation of seats to Scheduled Castes and Scheduled Tribes in municipal corporations which is based on the ratio of total population of Scheduled Castes or Scheduled Tribes in the city to the total population of the city.
23. In all the three enactments, namely, the Karnataka Municipal Corporations Act, 1976, Karnataka Municipalities Act, 1964 and the Karnataka Gram Swaraj and Panchayat Raj Act, it is ordained that one seat each shall be reserved for Scheduled Castes and Scheduled Tribes and this makes it clear that it is the population of the Panchayat area that should be the basis of reserving seats as it is well nigh impossible to comprehend any Panchayat area in Karnataka which is not inhabited by people belonging to the Scheduled Castes or Scheduled Tribes.
24. Thus there is a clear inconsistency between Section 162 of the Act of 1993 and Article 243-D of the Constitution of India in so far as it relates to reservation of 24 seats in the Panchayat. It is such inconsistency that is sought to be weeded out by Article 243-N of the Constitution of India which reads as follows:
"243-N. Continuance of existing laws and Panchayats.--Notwithstanding anything in this Part, any provision of any law relating to Panchayats in force in a State immediately before the commencement of the Constitution (Seventy-third Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:
Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.25
25. Thus, it is crystal clear that while fixing the proportionate reservation of seats in the Zilla Panchayat, it should be only on the basis of population in the Zilla Panchayat area and not the population of the district. Having held so, if the population in the smaller urban areas /municipal areas/ industrial townships is excluded, then the following would emerge:
Total rural SC- rural ST-rural Percentage No of No of Population- population population to total seats to seats rural be reserved population reserved A B C D B x 100/A D x 47 C x 100/A seats/100 1730775 489697 28.29 13.29 13 50074 2.89 1.36 1
26. In view of the above, the respondent No.3 has rightly reserved thirteen seats to Scheduled Castes and 1 seat to Scheduled Tribes by ignoring the decimal. The Judgment in the case of Ganesh Sukhdeo Gurule is not an authority in the matter of reservation of seats and thus 26 would not in any help the petitioner. Thus there is no merit in this writ petition and the same is dismissed.
Sd/-
JUDGE RSP