Karnataka High Court
Sri Anjana Murthy N vs Smt. Kalpana Manjunatha on 21 April, 2021
Bench: Satish Chandra Sharma, Suraj Govindaraj
1 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2021
PRESENT
THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT APPEAL NO.46 OF 2021
C/W
WRIT APPEAL NO.227 OF 2021 (LB-RES)
IN WRIT APPEAL NO.46 OF 2021
BETWEEN:
1. SRI. ANJANA MURTHY.N
S/O L.N. NAGARAJU
AGED 38 YEARS
COUNCILOR WARD NO.1
PRASANNA ANJENEYA TRUST
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
2. SMT. RAJAMMA
W/O A. PILLAPPA
AGED 45 YEARS
COUNCILOR WARD NO.2
RAYAN NAGAR
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
3. SMT. N.G. SUJATHA
W/O MUNIYAPPA
AGED 43 YEARS
2 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
COUNCILOR WARD NO.3
BILLALNAGARA - JAYANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
4. SRI. R. SUNIL MOOD
S/O L. RUDRA NAIK
AGED 47 YEARS
COUNCILOR WARD NO.4
KOTE BEEDI, JAYADEVA HOSTEL ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
5. SRI. ANAND.G
S/O GANGANNA
AGED 39 YEARS
COUNCILOR WARD NO.5
DEVANGA BEEDI
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
6. SRI. GANGADHAR RAO.N.S
S/O L. SIDDOJI RAO
AGED 44 YEARS
COUNCILOR WARD NO.6
MARALONI ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
7. SRI. PURUSHOTHAM. A
S/O ANDANAPPA
AGED 38 YEARS
COUNCILOR WARD NO.7
CHENNAKESHAVASWAMI GUDI ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
3 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
8. SMT. SHARADHA UMESH
W/O UMESH
AGED 42 YEARS
COUNCILOR WARD NO.8
HIPPE ANJANEYASWAMY EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
9. SMT. DAKSHAYNI RAVIKUMAR
W/O RAVIKUMAR.N.G
AGED 43 YEARS
COUNCILOR WARD NO.9
JMC EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
10. SMT. POORNIMA SUGGARAJU
W/O SUGGARAJU
AGED 30 YEARS
COUNCILOR WARD NO.10
GAJARIYA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
11. SRI. GANESH.N
S/O NAGARAJU.N.M
AGED ABOUT 48 YEARS
COUNCILOR WARD NO.11
CHENNAPPA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
12. SRI. ANJANAPPA
S/O NARSIMHAIAH
AGED 64 YEARS
COUNCILOR WARD NO.12
BANK COLONY
TOWN MUNICIPAL COUNCIL
4 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
13. SRI. B. PADMANABHA
S/O B.T. BANANJAPPA
AGED 52 YEARS
COUNCILOR WARD NO.13
WEAVERS COLONY
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
14. SRI. K.M. SHIVAKUMAR
S/O K.R. MAYANNA
AGED 47 YEARS
COUNCILOR WARD NO.14
SUBHASHNAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
15. SMT. BAGYAMMA
W/O NARASIMHAMURTHY.N.V
AGED 40 YEARS
COUNCILOR WARD NO.15
GANESH RAO EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
16. 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
17. SRI. PRADEEP.C
S/O S. CHANNABASAVAIAH
AGED 36 YEARS
COUNCILOR WARD NO.17
5 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
MASIDI ROAD, SUBHASHNAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
18. SRI. CHETAN.N.M
S/O LATE NAGARAJU
AGED 35 YEARS
COUNCILOR WARD NO.18
GOVINDAPPA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
19. SRI. NARASIMHA MURTHY
S/O LATE MARIYAPPA
AGED 47 YEARS
COUNCILOR WARD NO.19
VIJAYANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
20. SMT. LATHA HEMANTHKUMAR
W/O N.P. HEMANTHKUMAR
AGED 45 YEARS
COUNCILOR WARD NO.20
PARAMANNA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
21. SMT. LOLAKSHI
W/O GANGADHAR
AGED 40 YEARS
COUNCILOR WARD NO.21
INDIRANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
6 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
22. SMT. SUDHA
W/O KRISHNAPPA.K.K
AGED 48 YEARS
COUNCILOR WARD NO.22
SADASHIVANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
23. SMT. PUSHPALATHA.B
W/O MARE GOWDA
AGED 42 YEARS
COUNCILOR WARD NO.23
DADAPEER EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123 ... APPELLANTS
(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI. NAGARAJAPPA.A, ADVOCATE FOR A. NAGARAJAPPA &
ASSOCIATES-PH)
AND:
1. SMT. KALPANA MANJUNATHA
W/O SRI.MANJUNATH
AGED ABOUT 33 YEARS
EX.MEMBER ARISINAKUNTE
GRAMA PANCHAYATH
RESIDENT 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 ARISINAKUNTE
GRAMA PANCHAYATH
RESIDENT AT NO.377
ADARSHA NAGAR, KASABA HOBLI
7 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
NELAMANGALA TOWN
BENGALURU RURAL DISTRICT-562123
3. SRI. KEMPURAJU
S/O LATE HONNAPPA
AGED ABOUT 45 YEARS
EX.MEMBER VAJARAHALLI
GRAMA PANCHAYATH
RESIDENT AT VAJARAHALLI
KASABA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562123
4. SRI. LAKSHMINARAYANA
S/O LATE MURTHARAYAPPA
AGED ABOUT 44 YEARS
MEMBER AND PRESIDENT
ARISINAKUNTE, GRAMA PANCHAYATH
R/AT ADARSHA NAGAR
ARISHINAKUNTE VILLAGE, KASABA HOBLI
NELAMANGALA TALUK AND
BENGALURU RURAL DISTRICT-562123
5. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LOCAL BODIES AND
MUNICIPAL ADMINISTRATION
VIDHANA SOUDHA
BENGALURU-560 001
6. THE DIRECTOR OF MUNICIPAL ADMINISTRATION
DR. AMBEDKAR VEEDHI
VISHWESHWARAIAH TOWER
SAMPANGI RAMA NAGAR
BENGALURU-560 001
7. THE CITY MUNICIPAL COUNCIL
REPRESENTED BY ITS COMMISSIONER
NELAMANGALA
BENGALURU RURAL DISTRICT-562123
8. THE STATE ELECTION COMMISSION
FOR LOCAL BODIES
8 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
REP. BY ITS COMMISSIONER
NO.8, 1ST FLOOR, CUNNINGHAM ROAD
BENGALURU-56052
9. THE DEPUTY COMMISSIONER
BENGALURU RURAL DISTRICT
MINI VIDHANA SOUDHA
DEVANAHALLI -DODDABALLAPURA ROAD
CHAPARADA KALLU, BEERASANDRA VILLAGE
KUNDANA HOBLI, DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562110
10. THE NELAMANGALA CITY MUNICIPAL
COUNCIL, OFFICE BEARING BEING
THE ASSISTANT COMMISSIONER
DODDABALLAPURA SUB DIVISION
DODDABALLAPURA TALUK OFFICE ROAD
DODDABALLAPURA-651203
11. THE TAHASILDAR
NELAMANGALA TALUK
NELAMANGALA TALUK OFFICE
BENGALURU RURAL DISTRICT-562123 ... RESPONDENTS
(BY SRI. SUNIL SESHAGIRI RAO, ADVOCATE FOR C/R1 TO R3-PH;
SRI. SHYAN CHINNAPPA, AAG A/W
SMT. PRATHIMA HONNAPURA, AGA FOR R5, R6, R9 & R11)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 05.01.2021 OF THE LEARNED SINGLE JUDGE OF
THIS HON'BLE COURT MADE IN W.P.NO.11725/2020 C/W
6398/2020 AND DISMISS THE WRIT PETITIONS.
*****
IN WRIT APPEAL NO.227 OF 2021
IN WRIT PETITION NO.11725 OF 2020
BETWEEN:
1. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA, BENGALURU-560 001
REP. BY THE PRINCIPAL SECRETARY
9 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
2. THE DIRECTORATE OF MUNICIPAL
ADMINISTRATION, DR. AMBEDKAR VEEDHI
VISHWESWARAIAH TOWER
SAMPAGIRAMA NAGAR
BENGALURU
3. THE DEPUTY COMMISSIONER
BENGALURU RURAL
CURRENTLY ADMINISTRATOR
CITY MUNICIPAL COUNCIL NELAMANGALA
OFFICE AT MINI VIDHANA SOUDHA
BEERASANDRA VILLAGE
CHAPARADA KALLU GATE
KUNDANA HOBLI, DEVANAHALLI TALUK
DEVANAHALLI-DODDABALLAPURA ROAD
BENGALURU RURAL DISTRICT-562 110 ... APPELLANTS
(BY SRI.DHYAN CHINNAPPA, AAG A/W
SMT. PRATHIMA HONNAPURA, AGA-PH)
AND:
1. SMT. KALPANA MANJUNATH
W/O SRI. MANJUNATH
AGED ABOUT 33 YEARS
EX-MEMBER ARISHINAKUNTE
GRAM PANCHAYATH
R/AT NO. 48, BEHIND CIVIL COURT
JAKKASANDRA, NELAMANGALA TOWN
BENGALURU RURAL DISTRICT-562 123
2. SRI. H. RAJANNA
S/O LATE HONNAPPA
AGED ABOUT 65 YEARS
EX-MEMBER ARISHINAKUNTE
GRAMA PANCHAYATH
R/AT NO. 377, ADARSH NAGAR
ARISHINAKUNTE VILLAGE
KASABA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
10 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
3. SRI. KEMPARAJU
S/O LATE HONNAPPA
AGED ABOUT 45 YEARS
EX-MEMBER VAJARAHALLI
GRAM PANCHAYATH
R/AT VAJARAHALLI VILLAGE
KASABA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
4. THE CITY MUNICIPAL COUNCIL
REP. BY ITS COMMISSIONER
NELAMANGALA
BENGALURU RURAL DISTRICT-562 123
5. THE STATE ELECTION
COMMISSIONER FOR LOCAL BODIES
REP. BY ITS COMMISSIONER
NO.8, 1ST FLOOR, CUNNINGHAM ROAD
BENGALURU-560 052
6. SRI. ANJANA MURTHY.N
S/O L.N. NAGARAJU
AGED ABOUT 38 YEARS
COUNCILOR WARD NO.1
PRASANNA ANJENEYA TRUST
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
7. SMT. RAJAMMA
W/O A. PILLAPPA
AGED ABOUT 45 YEARS
COUNCILOR WARD NO.2
RAYAN NAGAR
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
8. SMT. N.G. SUJATHA
W/O MUNIYAPPA
AGED ABOUT 43 YEARS
COUNCILOR WARD NO.3
BILLAINAGARA - JAYANAGARA
TOWN MUNICIPAL COUNCIL
11 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
NELAMANGALA
BANGALURU 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
BANGALURU RURAL DISTRICT-562123
10. SRI. ANAND.G
S/O GANGANNA
AGED ABOUT 39 YEARS
COUNCILOR WARD NO.5
DEVANGA BEEDI
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
11. SRI. GANGADHAR RAO.N.S
S/O L. SIDDOJI RAO
AGED ABOUT 44 YEARS
COUNCILOR WARD NO.6
MARALONI ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
12. SRI. PURUSHOTHAM. A
S/O ANDANAPPA
AGED ABOUT 38 YEARS
COUNCILOR WARD NO.7
CHENNAKESHAVASWAMI GUDI ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
13. SMT. SHARADHA UMESH
W/O UMESH
AGED ABOUT 42 YEARS
COUNCILOR WARD NO.8
12 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
HIPPE ANJANEYASWAMY EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
14. SMT. DAKSHAYNI RAVIKUMAR
W/O RAVIKUMAR.N.G
AGED ABOUT 43 YEARS
COUNCILOR WARD NO.9
JMC EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
15. SMT. POORNIMA SUGGARAJU
W/O SUGGARAJU
AGED ABOUT 30 YEARS
COUNCILOR WARD NO.10
GAJARIYA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
16. SRI. GANESH.N
S/O NAGARAJU.N.M
AGED ABOUT 48 YEARS
COUNCILOR WARD NO.11
CHENNAPPA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
17. SRI. ANJANAPPA
S/O NARSIMHAIAH
AGED ABOUT 64 YEARS
COUNCILOR WARD NO.12
BANK COLONY
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
13 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
18. SRI. B. PADMANABHA
S/O B.T. BANANJAPPA
AGED ABOUT 52 YEARS
COUNCILOR WARD NO.13
WEAVERS COLONY
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
19. SRI. K.M. SHIVAKUMAR
S/O K.R. MAYANNA
AGED ABOUT 47 YEARS
COUNCILOR WARD NO.14
SUBHASHNAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
20. SMT. BAGYAMMA
W/O NARASIMHAMURTHY.N.V
AGED ABOUT 40 YEARS
COUNCILOR WARD NO.15
GANESH RAO EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU 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
BANGALURU RURAL DISTRICT-562123
22. SRI. PRADEEP.C
S/O S. CHANNABASAVAIAH
AGED ABOUT 36 YEARS
COUNCILOR WARD NO.17
MASIDI ROAD, SUBHASHNAGARA
TOWN MUNICIPAL COUNCIL
14 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
23. SRI. CHETAN.N.M
S/O LATE NAGARAJU
AGED ABOUT 35 YEARS
COUNCILOR WARD NO.18
GOVINDAPPA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
24. SRI. NARASIMHA MURTHY
S/O LATE MARIYAPPA
AGED ABOUT 47 YEARS
COUNCILOR WARD NO.19
VIJAYANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
25. SMT. LATHA HEMANTHKUMAR
W/O N.P. HEMANTHKUMAR
AGED ABOUT 45 YEARS
COUNCILOR WARD NO.20
PARAMANNA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
26. SMT. LOLAKSHI
W/O GANGADHAR
AGED ABOUT 40 YEARS
COUNCILOR WARD NO.21
INDIRANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
27. SMT. SUDHA
W/O KRISHNAPPA.K.K
AGED ABOUT 48 YEARS
COUNCILOR WARD NO.22
15 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
SADASHIVANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
28. SMT. PUSHPALATHA
W/O MAREGOWDA
AGED ABOUT 42 YEARS
COUNCILOR WARD NO.23
DADAPEER EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123 ... RESPONDENTS
IN WRIT PETITION NO.6398 OF 2020
BETWEEN:
1. STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA, BENGALURU-560 001
2. THE DIRECTORATE OF MUNICIPAL
ADMINISTRATION, DR. AMBEDKAR VEEDHI
VISHWESWARAIAH TOWER
SAMPAGIRAMA NAGAR
BENGALURU
3. THE DEPUTY COMMISSIONER
BENGALURU RURAL
MINI VIDHANA SOUDHA
DEVANAHALLI-DODDABALLAPURA ROAD
CHAPARADA KALLU
BEERASANDRA VILLAGE
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 110
4. THE TAHSILDAR
NELAMANGALA TALUK
NELAMANGALA TALUK OFFICE
NELAMANGALA TOWN
BENGALURU RURAL DISTRICT ... APPELLANTS
16 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
(BY SRI.DHYAN CHINNAPPA, AAG A/W
SMT. PRATHIMA HONNAPURA, AGA-PH)
AND:
1. SMT. KALPANA MANJUNATH
W/O SRI. MANJUNATH
AGED ABOUT 33 YEARS
EX-MEMBER ARISHINAKUNTE
GRAM PANCHAYATH
R/AT NO. 48, BEHIND CIVIL COURT
JAKKASANDRA, NELAMANGALA TOWN
BENGALURU RURAL DISTRICT-562 123
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-562 123
3. SRI. H. RAJANNA
S/O LATE HONNAPPA
AGED ABOUT 65 YEARS
MEMBER ARISHINAKUNTE
GRAMA PANCHAYATH
R/AT NO. 377, ADARSH NAGAR
ARISHINAKUNTE VILLAGE
KASABA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
4. SRI. KEMPARAJU
S/O LATE HONNAPPA
AGED ABOUT 45 YEARS
MEMBER VAJARAHALLI
GRAM PANCHAYATH
R/AT VAJARAHALLI VILLAGE
17 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
KASABA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
5. THE CITY MUNICIPAL COUNCIL
REP. BY ITS COMMISSIONER
NELAMANGALA
BENGALURU RURAL DISTRICT-562 123
6. THE STATE ELECTION
COMMISSIONER FOR LOCAL BODIES
REP. BY ITS COMMISSIONER
NO.8, 1ST FLOOR, CUNNINGHAM ROAD
BENGALURU
7. THE NELAMANGALA CITY
MUNICIPAL COUNCIL
OFFICE BEARER BEING
THE ASSISTANT COMMISSIONER
DODDABALLAPURA SUB-DIVISION
DODDABALLAPURA TALUK
OFFICE ROAD
DODDABALLAPURA. ... RESPONDENTS
(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI. A. NAGARAJAPPA, ADVOCATE OF
A.NAGARAJAPPA & ASSOCIATES TO R6 TO R28-PH)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 05.01.2021 OF THE LEARNED SINGLE JUDGE OF
THIS HON'BLE COURT MADE IN W.P.NO.11725/2020 (LB-RES)
C/W WP NO.6398/2020 (LB-ELE).
*****
THESE WRIT APPEALS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 10.03.2021, THIS
DAY, SURAJ GOVINDARAJ J., PRONOUNCED THE
FOLLOWING:
18 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
JUDGMENT
1. The appellants are before this Court seeking for setting aside the Order dated 05.01.2021 passed by the learned Single Judge of this Court in W.P.No.11725/2020 c/w W.P.No.6398/2020. By way of the said Order, the learned Single Judge was pleased to allow the aforesaid writ petitions and direct the State Government to hold elections to the Nelamangala City Municipal Council within an outer limit of two months from the date of receipt of a certified copy of that Order.
2. W.P.No.6398/2020 had been filed seeking the following reliefs:
2.1. Issue a writ/order/direction declaring that the town municipal Council of Nelamngala, stands dissolved and consequently has agglomerated itself within the newly constituted City Municipal Council Nelamangala, in terms of Annexure-D; 19 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 2.2. Issue a writ/order/direction in the nature of certiorari quashing all further processes of election to the non-existing Town Muncipal Council, Nelamangala as issued by the respondent No.5 dated 13.03.2020 in Order No.ELN(Pam)CR.38/19- 20 AT Annexure-A;
2.3. Issue a writ/order/direction in the nature of certiorari quashing order dated 16.03.2020 in Circular No.ELNCR/42/19-20 all further processes of election to the non-existing Town Municipal Council, Nelamangala as issued by the Respondent No.7 at Annexure-A1;
2.4. Issue a writ/order/direction in the nature of mandamus directing the authorities to hold and conduct elections to the respondent No.2 and further appoint a person in the rank of Deputy/District Commissioner as the administrative officer of the respondent No.2 in terms of Section 315 of the Karnataka Municipalities Act.
3. W.P.No.11725/2020 had been filed seeking the following reliefs:
3.1. Issue a writ/order/direction quashing the office Circular passed by respondent No.1 bearing No.UD 37 MLR 2020 dated 03.08.2020 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; 3.2. Issue a writ/order/direction of Certiorari quashing the consequent impugned Order passed by the respondent No.4 dated 14.08.2020 bearing 20 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 No.DUDA(C3)/VV/44/2020-21 in making a recommendation contrary to the statute; 3.3. Issue a writ/order/direction in the nature of mandamus directing the respondents to implement the Order dated 11.5.2020 bearing No.UD 24 MLR 2020 dated 11.5.2020 found at Annexure-K 3.4. Issue a writ/order/direction in the nature of mandamus directing the authorities to continue the Administrative Officer already appointed under Section 315 of the Karnataka Municipalities Act till the regular elections are completed.
FACTS
4. The facts leading upto the above are:
4.1. A cabinet decision was taken on 28.02.2019 to form the Nelamangala CMC, which would include the Nelamangala TMC, the entire Arishinakunte and Vajrahalli Gram Panchayats and a portion of Vishveswarapura and Basavanahalli Gram Panchayaths.
4.2. Subsequent to the said cabinet decision, a preliminary proclamation was published in 21 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 terms of Section 3 (1) of the Karnataka Municipalities Act on 27.06.2019 whereunder the State Government made known the above intent as approved by the cabinet.
4.3. The respondent-State Government issued a preliminary proclamation by virtue of the powers vested in it under the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act'). By virtue of the said proclamation, the existing Nelamangala Town Municipal Corporation ('TMC' for short) along with the entire Arishinakunte and Basavanahalli Gram Panchayats and portions of Vajrahalli and Visveshwarapura Gram Panchayaths were sought to be absorbed into the newly constituted Nelamangala City Municipal Council (for 22 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 short, 'CMC'). Suffice it to say that prior to the said proclamation, there was no Nelamangala CMC in existence and the above TMC and Gram Panchayaths had independent existence.
4.4. The consent of the said TMC and Gram Panchayat had already been sought for and obtained on 4.4.1. 28.12.2017 from Nelamangala TMC, 4.4.2. on 11.01.2018 from Arishinkunte Gram Panchayath, 4.4.3. on 08.02.2018 from Vajrahalli Gram Panchayath, 4.4.4. on 01.03.2018 from Viveshwapura Gram Panchayath, 23 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 4.4.5. on 01.03.2018 from Basavanahalli Gram Panchayat.
4.5. By virtue of the said letters, consent had been furnished for the creation of a larger urban area viz., Nelamangala CMC. 4.6. Consequent to the proclamation dated 27.07.2019, a Government Order bearing No.UDD/65/MLR/2016 came to be issued and gazetted on 26.11.2019 under Section 9 of the Act. By virtue thereof, the Nelamangala CMC was created comprising of above TMC and Gram Panchayaths consisting of 24.49 sq.kms having a population of 70,393.
4.7. On the publication of Gazette notification, the administrative officer of the newly constituted Nelamangala CMC had written 24 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 to the Executive Officer, Taluk Panchayat, Nelamangala to hand over the details of all assets and liabilities of the TMC to CMC vide letter dated 25.02.2020, which was so handed over. Subsequently, the State Election Commission has authorized the Tahsildar to act as a Returning Officer to conduct election to the post of president and vice-president of the newly constituted Nelamangala CMC.
4.8. In terms of the roaster applicable, the post of President of Nelamangala TMC had been earmarked for General category and the post of Vice President had been earmarked for General (woman) category. 4.9. It is in such circumstances that W.P.No.6398/2020 was filed on 18.03.2020 25 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 seeking for declaration that the Nelamangala TMC stands dissolved by way of the aforesaid absorption and creation of new Nelamangala CMC, for quashing of the process of election as also for a mandamus directing the authorities to hold and conduct elections to the newly constituted Nelamangala CMC and appoint a person of a rank of Deputy Commissioner as an Administrative Officer of the CMC in terms of Section 315 of the Karnataka Municipalities Act.
4.10. Immediately after the issuance of notice in WP No.6398/2020, the State Government vide a Government Order bearing No.UD/24/MLR/2020 directed the authorities to initiate delimitation exercise, ward-wise identification process of the 26 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 category of population and fix the reservation roaster.
4.11. The State Government also appointed the Deputy Commissioner as the Administrative Officer of the Nelamangala CMC on 06.07.2020 in terms of Section 315 of the Act. In the said Order dated 06.07.2020, it was categorically stated that since the newly constituted Nelamangala CMC did not have any elected council, in the interest of administration until the newly elected Council comes into being, the Deputy Commissioner, Bangalore Rural District was appointed as an administrator under Section 315 of the Act until further orders. The said Order reads as under:-
¸ÀASÉå: £ÀCE 25 JAJ¯Ágï 2020 PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ «PÁ¸À ¸ËzsÀ, 27 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:06.07.2020 C¢ü¸ÀÆZÀ£É 2011 d£ÀUÀtw DzsÁgÀzÀ ªÉÄÃgÉUÉ PÀ£ÁðlPÀ ¥ËgÀ¸À¨ÉU s À¼À C¢ü¤AiÀĪÀÄ 1964gÀ£ÀéAiÀÄ ¨ÉAUÀ¼ÀÆgÀÄ UÁæªÀiÁAvÀgÀ f¯ÉèAiÀÄ £É®ªÀÄAUÀ® ¥ÀÄgÀ¸À¨ÉAs iÀÄ£ÀÄß £ÀUÀg¸ À À¨sÉ JAzÀÄ ªÉÄîÝeð É UÉÃj¹ CawªÀÄ C¢ü¸ÀÆZÀ£ÉAiÀÄ£ÀÄß ºÉÆgÀr¸À¯ÁVgÀÄvÀÛzÉ.
ºÉƸÀzÁV ªÉÄîÝeÉðUÉÃj¸À¯ÁzÀ ¨ÉAUÀ¼ÀÆgÀÄ UÁæªÀiÁAvÀgÀ f¯ÉèAiÀÄ £É®ªÀÄAUÀ® £ÀUÀg¸ À À¨sÉUÉ AiÀiÁªÀÅzÉà ZÀÄ£Á¬ÄvÀ ªÀÄAqÀ½ E®èzÃÉ EgÀĪÀÅzÀjAzÀ, PÀ£ÁðlPÀ ¥ËgÀ¸À¨sÉUÀ¼À C¢ü¤AiÀĪÀÄ 1964gÀ ¸ÉPÀë£ï 315gÀ£ÀéAiÀÄ DqÀ½vÁvÀäPÀ »vÀzÈÀ ¶×¬ÄAzÀ ªÀÄÄA¢£À ºÉƸÀ ZÀÄ£Á¬ÄvÀ P˹ì¯ï C¹ÛvÀéPÉÌ §gÀĪÀªÀgÉUÀÆ PÁAiÀÄð¤ªÀðºÀuÉUÁV DqÀ½vÁ¢üPÁjUÀ¼À£ÀÄß £ÉêÀÄPÀ ªÀiÁqÀ¨ÃÉ PÁVgÀÄvÀÛzÉ.
DzÀÄzÀjAzÀ, PÀ£ÁðlPÀ ¥ËgÀ¸À¨sÉUÀ¼À C¢ü¤AiÀĪÀÄ 1964gÀ£ÀéAiÀÄ ¥ÀÄzÀvÀÛªÁzÀ C¢üPÁgÀªÀ£ÀÄß ZÀ¯Á¬Ä¹, ¨ÉAUÀ¼ÀÆgÀÄ UÁæªÀiÁAvÀgÀ f¯ÉèAiÀÄ £É®ªÀÄAUÀ® £ÀUÀg¸ À À¨sÉUÉ f¯Áè¢üPÁj, ¨ÉAUÀ¼ÀÆgÀÄ UÁæªÀiÁAvÀgÀ f¯Éè EªÀgÀ£ÀÄß DqÀ½vÁ¢üPÁjAiÀi£ÁßV vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ ºÁUÀÆ ªÀÄÄA¢£À DzÉñÀzÀªÀgU É É £ÉêÀÄPÀ ªÀiÁr DzÉò¹zÉ.
PÀ£ÁðlPÀ gÁdå¥Á®gÀ DeÁÕ£ÀĸÁgÀ, ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è, ¸À»/-
¥ËgÁAiÀÄÄPÀÛgÀÄ ¸ÀPÁðgÀzÀ C¢üãÀ PÁAiÀÄðzÀ²ð(¥Àæ) £ÀUÀgÁ©üªÀÈ¢Ý E¯ÁSÉ 4.12. On 03.08.2020, the Under Secretary, Urban Development Department wrote to the Director, Municipal Administration, and 28 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Deputy Commissioner, Bangalore Rural, stating that in view of the elected representatives of the TMC and the Gram Panchayats forming part of the newly constituted Nelamangala CMC continuing to hold office in terms of Section 361 (3) of the Act, they will continue to hold office in the converted TMC areas and in terms of Section 360(d) of the Act, nomination of additional councillors has to be made as regards the Panchayats being merged with newly constituted Nelamangala CMC and hence, it was stated that no new elections are required to be held. In pursuance thereof, vide letter dated 14.08.2020, on considering the representation furnished by the members of the TMC, Nelamangala, the members of the Nelamangala TMC were 29 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 declared to be the members of the newly constituted Nelamangala CMC.
4.13. It is aggrieved by the same that W.P.No.11725/2020 had been filed seeking for a direction to quash the Circular issued by respondent No.1- State Government dated 03.08.2020. The Order passed by the Deputy Commissioner, Bangalore Rural, dated 14.08.2020 and for a mandamus directing the implementation of the Order dated 11.05.2020.
5. The learned Single Judge appreciating the facts, applicable law and circumstances, came to a conclusion that 5.1. No one provision of the Act addresses the situation since Section 359 nor Section 360 nor Section 361 of the Act could address 30 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 the present issue of upgradation of the TMC to CMC area, absorption of two entire Gram Panchayats and absorption of portions of two Gram Panchayats.
5.2. Section 358 of the Act would be applicable, thereby requiring the reconstitution of the municipal Council within a period of six months therefrom so as to confer legitimacy under the Constitution to the elected body. This being so for the reason that Section 358 of the Act is to be considered to be a general provision applicable to all circumstances contemplated under Chapter XVI of the Act.
5.3. On the upgradation, the erstwhile councillors of the Nelamangala TMC cannot 31 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 contend that they would continue as councillors of the CMC till the expiry of their term.
5.4. The learned Single Judge considering the mandate of Article 243-R of the Constitution was of the opinion that all the seats in the Municipality are to be filled up with persons chosen by direct elections, satisfying the requirement of reservations under Article 243-T of the Constitution as also for the elections to be held at the duration of five years each.
5.5. Taking into consideration the fact that the Nelamangala TMC which had a population less than 40,000 had 23 councillors from 23 wards but by inclusion of the two entire Gram Panchayats and two partial Gram 32 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Panchayats, the population of the Nelamangala CMC stood increased to 70,393, which would require 31 wards to be demarcated and 31 councillors to be elected. It is only if such steps were taken that there would be legitimacy in the Municipality and hence, the learned Single Judge held that Sections 359, 360 and 361 of the Act would come into operation simultaneously and the Government would be required to hold elections within a period of six months as mandated by Section 358 of the Act.
5.6. Taking into account the fact that an administrator had been appointed, the learned Single Judge was of the considered opinion that such an administrator could not hold the office for more than a period 33 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 of six months, and as such, elections are required to be held within the said period of six months.
5.7. The learned Single Judge negated the contention of the respondent/state that the interests of the residents of the area are met by the Government nominating additional Councillors to the newly constituted Nelamangala CMC. The learned Single Judge was of the opinion that nomination of councillors would not amount to direct election, therefore, contravening Article 243-R of the Constistution.
Furthermore, the same would violate the requirement of reservation under Article 243-T of the Constistution. Hence, the learned Single Judge allowed the writ petitions directing the State Government to 34 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 hold elections to the Nelamangala CMC within an outer limit of two months from the date of the Order.
5.8. It is aggrieved by the same that the appellants in W.A.No.46/2021 who claim to be the elected representatives of the erstwhile Nelamangala TMC are before this Court. The State is also before this Court on appeal in W.A.No.227/2021.
6. The appellants in W.A.No.46/2021 contend that 6.1. The petitioners in W.P.No.11725/2020 did not have any locus to file such a writ petition inasmuch their term as panchayat members had ended long ago. Hence, they could not maintain any writ petition. 6.2. They did not have any subsisting interest in continuing as Gram Panchayat members, at 35 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 the most, the same could be a Public Interest Litigation, which is also not maintainable.
6.3. The learned Single Judge ought not to have granted any relief in the said matter. The orders passed by the State Government and the Deputy Commissioner were in accordance with Section 361 (3) and 360(d) of the Act, the said orders cannot be challenged.
6.4. The said orders having been passed in order to ensure that the term of the office of the appellants are maintained and not cut short. The elections to the TMC was held in pursuance of the notification dated 13.05.2019 on 03.06.2019 in order to comply with the mandate under Articles 36 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 243 (ZA), 243 (R) and 243 (T) of the Constitution of India as also in terms of Section 9 of the Act and Rule 8 of the Karnataka Municipalities (Election of Councillors) Rules, 1977, they were notified as elected councillors and as such have a guaranteed tenure of five years from such date of the election.
6.5. The term of five years cannot be cut short by way of the Order of the learned Single Judge directing the holding of fresh elections. The learned Single Judge has not issued any particular direction to the State Election Commission to hold the election, and as such, the Order is not implementable.
37 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 6.6. There being no relief sought against the State Election Commission, the question of directing the State Government to conduct the election is not permissible. The delimitation exercise can only be carried out in the year 2024 after the term of the present councillors comes to an end in the year 2024, and the same cannot be done now. It is contended that delimitation exercise is still not carried out. The learned Single Judge has proceeded under the wrong premise that delimitation has already been carried out, and as such, the Order is to be set aside.
6.7. Merely because a TMC is upgraded and/or panchayats are merged with the TMC, there are no requirements for holding an election, if such an order is implemented, 38 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 there would be multiple elections, which would have to be held, which would be contrary to the mandate of the Constitution. A census being conducted in the year 2021, the delimitation exercise would have to be carried out in furtherance of the said census. In the absence of census and delimitation, no fresh election can be held in respect of newly formed Nelamangala CMC.
7. In W.A.No.227/2021 filed by the State Government, it is contended that 7.1. The State Government has exercised the powers vested with it in a proper and required manner. The State Government, by exercising powers under Section 360 (d) of the Act, has nominated one member 39 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 each from the panchayat area absorbed in the CMC.
7.2. It is for the councillors nominated under Sections 359 (1) (j), and 360 (1) (d) of the Act i.e., the additional councillors to act as representatives of the people of the constituency and they would have voting rights.
7.3. The delimitation exercise is still not completed. Hence, it is not possible to hold an election within two months time as directed by the learned Single Judge. 7.4. The W.P.No.6398/2020 having been filed for the purpose of formation of CMC and the same having been done, the same ought to have been dismissed as having become infructuous.
40 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 7.5. On the Constitution of the CMC, the petitioners in W.P.No.11725/2020 have therefore ceased to be gram panchayat members. Hence, they would have no locus to file W.P.No.11725/2020 since they are neither councillors of the TMC or CMC nor they have sought for being nominated as additional councillors of the CMC, which nomination is at the sole discretion of the State Government.
7.6. Merely because there is a newly constituted CMC and/or a TMC is upgraded to a CMC, fresh elections are not required to be held. Such a situation is taken care by Section 359 and Section 360 of the Act whereunder the existing members of the TMC would continue as elected members of CMC, and insofar as Panchayat is concerned, the 41 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Government would nominate the additional councillors. On the aforesaid grounds, the State Government has sought for setting aside of the Order of the learned Single Judge.
8. Sri. Jayakumar S.Patil, learned Senior counsel appearing for the appellants in W.A.No.46/2021 while reiterating the contents of the appeal, would submit:
8.1. When a statute provides for the exercise of power by the State Government and the State Government has exercised the same in terms of the said statute, the same cannot be faulted with nor could the same be set aside by the learned Single Judge. 8.2. Admittedly TMC is upgraded to CMC in terms of Section 361 of the Act. On such 42 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 up-gradation and/or conversion, all the properties vested with TMC would get transferred to CMC, all notifications, including the notification regarding the appellants having been elected as councillors, would continue to remain in force. The elected representatives would continue to hold the office as councillors of the CMC until the next election since the term of their office is guaranteed by the Constitution of India.
8.3. The appellants in W.A.No.46/2021, having been elected as recently as in the year 2018, their elections cannot be negated by the conversion of TMC into CMC or the absorption of the Panchayat into a CMC. 43 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 8.4. Every time when there is an up-gradation or absorption, there cannot be a fresh election. The tenure of the elected representatives has to be considered and protected. The Act in terms of Section 359 (1) (j) of the Act provides necessary powers to the State Government to nominate additional councillors in the event of the entire Panchayat area being absorbed into smaller urban area. 8.5. In the present case, the entire Arishinakunte and Basavanahalli Gram Panchayats being absorbed in the Nelamangala CMC, the State Government could nominate additional councillors for every 1000 residents in the said panchayat area, which process is yet to be completed. 44 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 8.6. The petitioners could not have any grievance in relation thereto since, until the next election, their interest could be safeguarded by the additional councillors nominated by the Government.
8.7. In respect of a part of the panchayat area being absorbed in a smaller urban area like absorption of a portion of Vajrahalli, Rajarahalli and Vishveshwapura into the Nelamangala CMC, Section 360 (d) of the Act provides powers to the State Government to nominate additional councillors for every 1000 persons of the area absorbed in the smaller urban area which power is also in the course of being exercised by the State Government. These additional councillors would take care of the interest of the Vajrahalli and 45 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Vishveswapura Gram Panchayats and as such, there was no requirement for the learned Single Judge to interfere with the same.
8.8. If the process of delimitation were to be conducted, it would take a long period of time, thereby depriving the residents of the Nelamangala CMC from elected representatives till that time as also depriving the already elected councillors of their guaranteed tenure. On the above grounds, he submits that the Writ Appeal is required to be allowed and the Order passed by the learned Single Judge is to be set aside.
9. Sri. Dhyan Chinnappa, learned Senior counsel and learned Additional Advocate General 46 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 appearing for the State in W.A.No.227/2021 while adopting the submissions made by Sri.Jaykumar S.Patil, learned senior counsel further submitted that:
9.1. If elections were to be held every time a TMC is upgraded to CMC or Panchayat absorbed in a TMC or CMC, then in that event, the Government could resort to such mergers and/or up-gradation so as to hold an election whenever found fit by the Government.
9.2. Thus, if such elections are held as directed by the learned Single Judge, the entire democratic system would come to an end resulting in a burden on the public exchequer etc., 47 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 9.3. As such, holding of an election cannot be an answer, more so, when the State has powers under Sections 360 (d) and 359 (1)(j) of the Act to nominate additional councillors, and in terms of Section 361 of the Act, the councillors of the TMC would continue as councillors of the CMC. Thus, he submits that the Writ Appeal filed by the State needs to be allowed and the Order passed by learned Single Judge is to be set aside.
10. Sri.Sunil Rao, learned counsel appearing for respondents in both the matters would support the decision of the learned Single Judge and submit that the Order passed by learned Single Judge is proper and correct and the said Order is the most reasonable and practical Order that could have been passed in the given 48 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 circumstances. Though he has no objection for the Constitution of the Nelamangala CMC, he submits:
10.1. Once the said CMC has been established, it is required for election to be held so that the residents of the said CMC are properly and adequately represented, since the entire demography of the area has changed.
10.2. That maximum of 4 persons can be nominated by the State. The strength of the erstwhile Nelamangala TMC is 23 councillors, and only 4 additional councillors could be nominated, totalling
27. 10.3. The 23 councillors are elected from and out of the area coming within the erstwhile 49 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 TMC consisting of less than 40,000 people. Thus, he submits that 23 councillors would actually be representing less than 40,000 people and 4 additional councillors would be representing more than 30,000 people added to the CMC from the Panchayat. Thus, he submits that there would be an imbalance in the representation, which is not permissible.
10.4. The Act does not take into consideration the conversion of a TMC into CMC and the simultaneous absorption of entire Gram Panchayat or a portion of Gram Panchayat. Thus, the State cannot exercise powers under Sections 359 and 360 of the Act. simultaneously. The Act not providing such powers, the State having exercised such powers is contrary to the statutes and 50 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 when no such power is provided, the only thing that could have been done was to hold fresh elections, which is so directed by the learned single judge and as such he submits that the Order of the learned Single Judge ought not to be interfered with.
11. Heard Sri. Jaykumar S.Patil, learned Senior counsel appearing for the appellant in W.A.No.46/2021 and Sri. Dhyan Chinnappa learned Senior counsel and learned Additional Advocate General for the appellant in W.A.No.227/2021 and Sri. Sunil Rao, learned counsel for respondents in both the matters and perused papers.
51 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
12. On the basis of the submissions made, pleadings filed, the documents on record, the points that would arise for our consideration are:
1. Whether while conversion of Town Municipal area into a City Municipal area, Panchayat could be added to the said City Municipal Council?
2. What would be the status of the elected representatives of the Town Municipal Corporation when the same is converted into a City Municipal Council?
3. What would be the status of the elected representatives of the Panchayat when the Panchayat is merged with the newly formed City Municipal Council?
4. Is a tenure of five years sacrosanct, or could it be varied on account of the merger and/or conversion into a City Municipal Council?
5. Whether nomination as contained under Section 359(1) (j) and 360(d) of the Municipalities Act would be sufficient to hold that there is an appropriate representation of the merged Panchayat into a City Municipal Council?52 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
6. What is the effect of delimitation and reservation on such merger and formation of City Municipal Council?
7. Whether the provisions of Section 358 could apply to a newly formed City Municipal Council by conversion of Town Municipal Council and merger of panchayats is carried out?
8. Does the judgment of the learned Single Judge suffer from legal infirmity requiring interference?
9. What Order?
13. Before answering the points, the relevant provisions, namely Sections 358, 359, 360 and 361 of the Act, are reproduced hereunder for easy reference:
Section 358: Term of office of members of interim municipal Council and their powers.--
(1) 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.
(2) The councillors of the interim municipal Council shall hold office until the date immediately preceding the date of the first meeting of the new municipal Council.53 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 (3) Any vacancy in the office of the interim municipal Council shall be filled as soon as conveniently may be, by appointment by the Government. (4) All arrears of rates, taxes and fees, vesting in the interim municipal Council shall, notwithstanding that such rates and fees cannot be levied under this Act, be recoverable in the same manner as a tax recoverable under chapter VII.
(5) In other respects the provisions of this Act shall mutatis mutandis apply to the interim municipal Council and its councillors.
Section 359: Effect of absorption of Panchayat area into smaller urban area:-
1. --Notwithstanding anything contained in this Act, if any local area ceases to be a panchayat area by virtue of a notification under section 4 of the Karnataka Panchayat Raj Act, 1993 (hereinafter in this section referred to as the said local area), and is absorbed in a smaller urban area the following consequences shall ensue, namely:
a. the unexpended balance of the Grama Panchayat Fund and the property (including arrears of rates, taxes and fees) belonging to the Grama Panchayat of the said local area (hereinafter referred to as the Panchayat) and all rights and powers which prior to such notification, vested in the Panchayat shall, subject to all charges and liabilities affecting the same, vest in the municipal Council of such smaller urban area (herein referred to as the municipal Council) as the municipal fund;
b. any appointment, notification, notice, tax, Order, scheme, licence, permission, rule, bye-law 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 shall continue in force and be deemed to have 54 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 been made, issued, imposed or granted in respect of such smaller urban area until it is superseded or modified by any appointment, notification, notice, tax, Order, scheme, licence, permission, rule, bye- law or form, made, issued, imposed or granted under this Act;
c. 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 shall be deemed to have been made or authenticated under this Act;
d. all debts and obligations incurred and all contracts made by or on behalf of the Panchayat immediately before the said date and subsisting and on the said date shall be deemed to have been incurred and made by the municipal Council in exercise of the powers conferred on it by this Act;
e. all officers and servants in the employ of the Panchayat immediately before the said date shall be officers and servants of the municipal Council under this Act and shall, until other provision is made in accordance with the provisions of this Act, receive salaries and allowances and be subject to the conditions of service to which they were entitled or subject on such date:
Provided that it shall be competent to the municipal Council, subject to the previous sanction of the Government, to discontinue the services of any officer or servant, who, in its opinion, is not necessary or suitable to the requirements of the municipal service after giving such officer or servant such notice as is required to be given by the terms of his employment and every officer or servant whose services are disposed with shall be entitled to such leave, pension, provident fund and gratuity as he would have been entitled to take or receive on being invalided out of service as if the 55 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Panchayat, in the employ of which he was, had not ceased to exist;
f. all proceedings pending at the said date before the Panchayat shall be deemed to be transferred to and continued by the municipal Council;
g. all appeals pending before any authority shall, so far as may be practicable, be disposed of as if the said local area had been included in the smaller urban area when they were filed;
h. all prosecutions instituted by or on behalf of the Panchayat and all suits or other legal proceedings instituted by or against the Panchayat or any officer of the Panchayat pending at the said date shall be continued by or against the municipal Council as if the said local area had been included in the smaller urban area when such prosecutions, suits or proceedings were instituted;
i. all arrears of rates, taxes and fees, vesting in the municipal Council shall, notwithstanding that such rates, taxes, and fees cannot be levied under this Act, be recoverable in the same manner as a tax recoverable under Chapter VII;
j. until the reconstitution of the municipal Council in accordance with the provisions of this Act, notwithstanding anything to the contrary contained in this Act, one person ordinarily resident in the local area absorbed in the smaller urban area who is nominated by the Government shall be an additional councillor of the municipal Council.
Section 360: Effect of absorption of a part of a panchayat area into a smaller urban area --If any part of an area within the limits of a Grama Panchayat is included in a smaller urban area, then, notwithstanding anything contained in this Act or in the 1 Karnataka Panchayat Raj Act, 1993 , but subject 56 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 to the provisions of sub-section (3) of Section 4 of this Act, the following consequences shall ensue, namely a. so much of the Grama Panchayat Fund and other property vesting in the Grama Panchayat shall be transferred to the Municipal Fund as the Deputy Commissioner may, by Order in writing, direct;
b. the rights and liabilities of the Grama Panchayat in respect of civil and criminal proceedings, contracts, and other matters or things (including arrears of taxes, fees and cess) arising in or relating to any part of the area included in the smaller urban area shall vest in the municipal Council; and such rights and liabilities may be enforced by or against the municipal Council under this Act or the rules, bye- laws and orders made thereunder;
c. such officers and servants of the Grama Panchayat shall be transferred to the municipal Council as the Government, by Order, direct;
d. if the area included is an area in which not less than one thousand persons reside, until the reconstitution of the municipal Council in accordance with the provisions of this Act, one person ordinarily resident in such area who is nominated by the Government shall be an additional councillor of the municipal Council.
14. Answer to Point No.1: Whether while converting a Town Municipal area into a City Municipal area, Panchayat could be added to the said City Municipal Council?
14.1. Section 361 of the Act provides for the conversion of a town municipal areas (TMC) into city municipal areas (CMC). Thus, it 57 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 would be clear that a town municipal area (TMC) can be converted into a city municipal area (CMC).
14.2. Section 359 of the Act speaks of the effect of absorption of a panchayat area (panchayat) into a smaller urban area, i.e., to say, a panchayat could either be absorbed by a TMC or CMC. This would indicate that such absorption is also permitted.
14.3. Section 360 of the Act provides for the absorption of a part of a panchayat area into a smaller urban area. This would establish and indicate that a part of the Panchayat could be absorbed in either a TMC or CMC.
58 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 14.4. The peculiar question that arises in the present facts is as to what would happen when a TMC has been upgraded and converted to a CMC and simultaneously two entire panchayats and portions of two pnachayats have also got absorbed into the CMC.
14.5. There is no single provision in the Act which refers to such a situation. The Act only refers to each situation in particular and/or isolation and not in combination. That would not mean that such conversion and absorption cannot happen simultaneously. 14.6. A new CMC being constituted, it would be in the interest of everyone that the same is done at one go rather than multiple stages. Thus, we are of the considered opinion that 59 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 there is no particular embargo for the conversion of town municipal area (TMC) into a city municipal area (CMC) simultaneously the entire Panchayat or a portion of Panchayat or both could be absorbed into the CMC.
15. Answer to Point No.2: What would be the status of the elected representatives of the Town Municipal Corporation when the same is converted into a City Municipal Council? 15.1. The status of TMC being converted into a CMC is dealt with by Section 361 of the Act, which CMC shall be constituted in terms of Section 11 of the Act. Section 11 deals with the number of councillors, number of wards, reservation for SC/ST, reservation for backward classes, reservation for women etc. 60 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 15.2. In Thyagarajan vs. State of Karnataka [1986 SCC Online KAR 131], this Court has held that when an election to a TMC is held and the results are declared, Clause 3 of Section 361 of the Act would save the notification of the election and the elected representatives of the erstwhile TMC would hold the same position under the new CMC. Considering the above, we are of the considered opinion that the elected representatives of the TMC would continue as members of the CMC so long as there is no other addition made to the CMC apart from TMC and it remains strictly a conversion or upgradation of a TMC into a CMC.
16. Answer to Point No.3: What would be the status of the elected representatives of the Panchayat when the Panchayat is merged 61 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 with the newly formed City Municipal Council?
16.1. A reading of Section 359 of the Act, which deals with absorption of the Panchayat area into a smaller urban area, would indicate as if that though all other aspects, decisions, notifications are saved, there is no such saving of the elections of the Panchayat members since Section 359 (1) (j) of the Act which begins with a non-abstante clause provides that notwithstanding anything to the contrary contained in the Act, one person ordinarily resident in the local area absorbed in the smaller urban area, can be nominated by the Government shall be an additional councillor of the municipal Council.
62 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 16.2. This would indicate that any and all elected members of the Panchayat would have demitted their office and/or the Panchayat would be deemed to have been dissolved on its absorption in a smaller urban area like CMC. In such a situation, irrespective of size of the Panchayat, population of the Panchayat and/or number of elected panchayat members, the State Government could nominate one local resident as an additional Councillor.
16.3. Suffice to say that on such absorption of an entire Panchayat with a TMC or CMC, one person could be nominated as an additional Councillor. Thus, all the elected representatives of the Panchayat would cease to function and/or hold office. 63 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 16.4. Similar would be the situation in respect of a part of the Panchayat area being absorbed in a smaller urban area. There could be only one nomination in terms of Section 360 (d) of the Act.
17. Answer to Point No.4: Is the tenure of five years sacrosanct, or could it be varied on account of the merger and/or conversion into a City Municipal Council? 17.1. It is not in all cases that elected representatives can serve for five years. Such a person could either be disqualified prior to the expiry of five years or even the Council could be dissolved before the expiry of five years.
17.2. The Hon'ble Apex Court in the case of State of Maharashtra vs. Deep Narayan Chavan [(2002) 10 SCC 565] has held that the dissolution of a council or a 64 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 legislature is permissible in accordance with the Act. The Apex Court once again in State of Maharashtra vs. Jalgaon Municipal Council [(2003) 9 SCC 731] has held that Article 243-U of the Constitution would apply only if the same type of Municipality is taking over the previous Municipality whose term has expired and it would not apply when the area of one description is being converted to an area of another description. Reference is to be made to Paras 21 and 22 thereof, which are hereunder reproduced for easy reference.
21. Having heard the learned counsel for the parties at length on this aspect, we are of the opinion that the said hiatus is an unavoidable event which must take place in the process of conversion of a Municipal Council into a Municipal Corporation. Reliance on Article 243-U by the learned counsel for the respondents in this context is misconceived. The use of the expression "a 65 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Municipality" in sub-article (3) of Article 243- U in the context and in the setting in which it is employed suggests and means the duration of the same type of Municipality coming to an end and the same type of successor Municipality taking over as a consequence of the term of the previous Municipality coming to an end. Article 243-U cannot be applied to a case where the area of one description is converted into an area of another description and one description of Municipality is ceased by constituting another Municipality of a better description. Article 243-U(3) cannot be pressed into service to base a submission on that an election to constitute a Municipal Corporation is required to be completed before the expiry of duration of a Municipal Council.
22. The Constitution of a Municipal Corporation would require notification of larger urban area and a Municipal Corporation to govern it. The area shall have to be divided into wards with the number of corporators specified and reservations made. The Corporation would need to nominate Councillors. The territorial limits may need to be altered. The State Election Commission cannot conduct election without specifying numbers and boundaries of wards. New rules, bye-laws etc. shall need to be framed and municipal tax structure may need to be recast. The statutory provisions do not contemplate a situation where the same area may be called a smaller and larger area simultaneously and process of Constitution of a Municipal Corporation being commenced and completed though the Municipal Council continues to exist. Such an action would result in anomaly and confusion if not chaos. Care has been taken by the legislature by engrafting Section 452-A into the body of the BPMC Act by the Bombay Provincial 66 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Municipal Corporations (Amendment and Validation) Act, 1995 (at Maharashtra Act 4 of 1995) which reads as under:
"452-A. Power of State Government to appoint government officer or officers to exercise powers and perform functions and duties of Corporation.--
(1) For every Municipal Corporation deemed to have been constituted or constituted for a larger urban area under sub-section (1) or sub-section (2) as the case may be, of Section 3, the State Government may appoint a government officer or officers to exercise all the powers and to perform all the functions and duties of a Corporation under this Act:
Provided that an Administrator appointed by the State Government before 31-5-1994 under the provisions of this Act, as it existed immediately before 31-5-1994, for a Municipal Corporation deemed to have been constituted for a larger urban area under sub-section (1) of Section 3 who is in office on the said date, shall be deemed to be the government officer appointed under this sub- section to exercise all the powers and perform all the functions and duties of the said Corporation under this Act. (2) The officer or officers appointed under sub-section (1) shall hold office until the first meeting of the Corporation or for a period of six months from the date of specification of an area as a larger urban area, under sub-
section (2) of Section 3, whichever is earlier:
Provided that the Administrator deemed to have been appointed as the government 67 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 officer under sub-section (1) shall hold office until the first meeting of the Corporation. (3) The officer or officers appointed or deemed to have been appointed under sub-
section (1) shall receive from the Municipal Fund such pay and allowances as may be determined, from time to time, by the State Government."
17.3. Similarly the Madras High Court in the case of P.Subbalakshmi vs. State of Tamil Nadu [2007 SCC Online Madras 643] has held that when various village Panchayats are sought to be constituted or reconstituted as town Panchayats, Article 243-E of the Constitution is not applicable since an area of one description is being converted to another description. Reference could be made Paras 14, 15 and 16 of the said decision, which are reproduced hereunder for easy reference:
14. An argument was advanced by the learned Senior counsel for the petitioner that 68 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 the term of five years contemplated under Article 243 E of the Constitution shall continue for five years unless sooner dissolved under Section 41 of the Act. Section 41 of the Act says that if in the opinion of the State Government the Municipality is not competent to perform or persistently make default in performing duties imposed on it by law or exceed or abuse its powers, by notification dissolve the Municipality from a specified date.
Exercise of power under Section 41 of the Act depends on subjective satisfaction of the Government. As rightly pointed out by the learned Advocate General, Section 41 of the Act cannot be equated with the upgradation of Village Panchayat into Town Panchayat.
15. In and by the upgradation, the old body coming to an end and same type of successor municipality takes over. Article 243 E cannot be applied to a case where an area of one description is converted into another description. Section 3 (CC)(1) of the Act contemplates that notwithstanding anything contained in this Act, the President and Members of the Village Panchayat, who are elected or deemed to have been elected and holding office as such immediately before the date of Constitution of such village panchayat as town panchayat under this Act, shall be deemed to be the Chairman and Members of the Town Panchayat elected under this Act and such Chairman and Members shall continue to hold the office upto such date as the Government may by notification fix in this behalf or if no such date is fixed upto the date on which their term of office would expire under the Tamil Nadu Panchayat Act, 1994 and such Chairman and Members shall exercise all powers and perform all duties conferred on the Chairman and Members by or under this Act. Thus, the person like the Petitioner, holding the office immediately 69 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 before the date of Constitution of such village panchayat as town panchayat under this Act deemed to exercise all power and performed all duties until by notification the State Government fixed the tenure. In this case, the State Government of the view that instead of appointing Government officers or Administrator deemed it fit that the elected representative of the Panchayat can continue till the new body is constituted. The State Government in exercise of power under Section 3 CC (1) (a) of the Act issued G.O. Ms. No. 91 dated 11.09.2006 thereby fixed the tenure of the Chairman and Members of the Special Village Panchayat upto 24.10.2006 and permitted them to hold the office till that period, hence, this Court is of the view that the said decision is perfectly valid.
16. The reason for fixing the date of tenure of the office of the elected representatives like the petitioner is the Government have decided to hold election by issuing G.O. Ms. No. 55 dated 14.07.2006 to re-constitute 561 Special Village Panchayat as Town Panchayat and hold election to all the Town Panchayats, including the Courtlam Town Panchayat in one main stream. Thus, the reasons for fixing the said date is also validly explained. 17.4. The Uttarakhand High Court in Kamal Jora vs. State of Uttarakhand, [2011 SCC Online Utt 2381] has held that when two municipal councils were sought to be merged to create a municipal corporation, 70 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 the dissolution of the municipal Council would not be unconstitutional and/or violative of Article 243-U of the Constitution, merely because, the term of the elected representatives of the municipal Council was to be in force for a further period of 2 years. Reference could be made to Para 9 of the said decision, which is reproduced hereunder for easy reference:
9. This Court was not in agreement with the first contention of the petitioners regarding the dissolution being unconstitutional before the term of the councils had come to an end and the Court had held that in a given contingency, an elected municipal council can be dissolved even prior to its term and a hiatus can be created and it would not be unconstitutional.
This was done following the judgment of Hon'ble Apex Court in State of Maharashtra v. Jalgaon Municipal Council reported in (2003) 9 SCC Page 731.
17.5. In view thereof, we are of the considered opinion that the tenure of five years is not sacrosanct as sought to be contended by 71 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 the appellants herein. Depending on the facts and circumstances like dissolution, merger, upgradation, conversion, etc., the said five years period would be reduced. We are, however, of the opinion that where there is no such conversion, absorption or dissolution, the term/period of the councillors would continue to be protected.
18. Answer to Point No.5: Whether nomination as contained under Section 359(1) (j) and 360(d) of the Municipalities Act would be sufficient to hold that there is an appropriate representation of the merged Panchayat into a City Municipal Council?
18.1. As could be seen in terms of Section 359 (1) (j) and Section 360 (d) of the Act, a person normally resident within the Panchayat could be nominated as an additional Councillor to the smaller urban area in which the said Panchayat is 72 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 absorbed. As held by the learned Single Judge, the nomination of a single person as additional Councillor, on such absorption, to be violative of Article 243-R of the Constitution, since the said seat is not filled by direct election but by way of nomination there being no particular rules regarding such nomination.
18.2. The learned Single Judge, the same would also contravene Article 243-T of the Constitution since such nomination could be done without regard to the reservation mandated under the Constitution. We are also in agreement with the judgment of the learned Single Judge inasmuch as the nomination of an additional Councillor cannot be said to be an adequate or 73 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 appropriate representation of the merged or absorbed Panchayat in the CMC.
19. Answer to Point No.6: Whether delimitation exercise is to be carried out and reservation roster finalized on such merger and formation of City Municipal Council? 19.1. As observed above, Section 11 of the Act provides for reservation of seats for SC/ST, backward class, women etc. The number of seats reserved must be in the same proportion to the total number of seats to be filled through direct elections as the population of each of the above category in that area. Section 13 of the Act provides for delimitation of the wards for the purpose of election of councillors. The said Section 13 of the Act is reproduced hereunder for easy reference:
74 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 Section 13: Wards for elections.-- 1. For the purposes of election of councillors to be elected to fill the seats under 1 [clause (a) of sub- section (1)]1 of section 11, the Government shall, [x x x] by notification determine a. the number of territorial wards into which the municipal area shall be divided; b. the extent of each territorial ward ; c. the number of seats allotted to each territorial ward which shall be one [x x x] ; and d. the number of seats, if any, reserved for the Scheduled Castes, Schedule Tribes, Backward classes and for women in each territorial ward .
[Provided that the territorial wards formed shall comprise, as far as may be, of contiguous blocks.
[(1A) No notification under sub-section (1) shall be called in question in any court of law.] 19.2. In terms of the above, the State Government is required to determine the number and extent of territorial division, number of seats allotted to each ward, number of seats reserved etc. This exercise of delimitation is required to be 75 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 carried out so as to provide suitable, adequate, and appropriate representation for the residents of the said area. This exercise of delimitation is required to be carried out at the earliest.
19.3. The Hon'ble Apex Court in Atma Singh vs. State of Punjab [(1981) 2 SCC 657 has categorically held that whenever there is a change in the limits of the Municipality, elections cannot be held without delimitation. Paras 6, 7 and 8 of the said judgment is reproduced hereunder for easy reference:
6. Whenever there is a change in the limits of a municipality, the State Government cannot proceed to hold election of Councillors without delimitation of the Municipality into wards. The delimitation of wards, a delicate and important task, is entrusted to a Delimitation Board constituted under Rule 3 of the Delimitation of Wards of Municipalities Rules, 1972 and under Rule 4 thereof it is the duty of the Delimitation 76 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Board to effect a redivision of a municipality.
That rule reads thus:
"4. Functions of the Board.--It shall be the duty of the Board--
(i) to divide the Municipality into such number of wards as may be necessary, having regard to the number of elected members prescribed by the State Government, for the Committee, and the number of seats reserved for members of the Scheduled Castes; and
(ii) to readjust the wards as and when the limits of the Municipality are altered or there is increase in population of the Municipality or there is abnormal variation in population or voting figures of some of the wards of the Municipality, which requires, such readjustment."
In the delimitation of wards, the Board must observe the principles laid down in Rule 6, namely, (1) all wards shall, as far as practicable, be geographically compact areas, and in delimiting them due regard shall be had to physical features, existing boundaries of administrative units, if any, facilities of communication and public convenience; (2) wards in which seats are reserved for the Scheduled Castes shall be located, as far as practicable, in those areas where the proportion of their population to the total population of the Municipality is the largest; and (3) each Municipality shall be divided into wards in such manner that the population of each ward, as far as practicable, is the same throughout the Municipality, with a variation up to 10 per cent above or below the average population figures. While making a redivision, it may not be possible to achieve mathematical perfection, but there must definitely be a substantial compliance with the 77 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 requirement that every person should have an equal vote.
7. The whole purpose of delimitation of municipalities into wards is to ensure that every citizen should get a fair representation in the municipalities. When a municipality is reconstituted by the inclusion of any local area within the limits of a municipality under sub- section (3) of Section 5 or by the exclusion of any local area from the limits of a municipality under Section 7, i.e. when there is an alteration of the limits of the Municipality, there must of necessity be a division of the reconstituted Municipality into new wards without which the elections cannot be held. There can be no disenfranchisement of a part of the electorate of a municipality. The question was dealt with at some length by the Gujarat High Court in Bhaichandbhai Maganlal Shah v. State of Gujarat [8 Guj LR 210 (Guj HC)] and it was observed:
"It must follow logically and inevitably from this proposition that the Constitution of wards dividing the whole of the municipal district is a sine qua non of a valid election. If no wards at all are constituted, in the municipal district, the machinery of election cannot go through and equally the machinery of election cannot go through if wards are constituted in respect of a part of the municipal district and the other part is not divided into any ward or wards. In such a case there would be lists of voters for the wards which are constituted out of a part of the municipal district but there would be no lists of voters so far as the other part of the municipal district is concerned and no one from that part would be qualified to vote or to stand as a candidate for the election and no Councillors being elected by that part, 78 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 there would be no representation of that part on the Municipality. Where such a situation arises, it is difficult to see how the Municipality can be said to be a municipality for the whole of the municipal district within the meaning of Section 9."
We approve of the view taken by the Gujarat High Court.
8. There can be no dispute with the principle that the State Government without reconstituting a municipality into new wards, cannot proceed to hold an election of Councillors, when there is an extension of the municipal limits, but the difficulty is about the applicability of that principle to the facts of the present case. There is no denying the fact that the effect of the stay order passed by the learned Single Judge staying the operation of the notification issued under sub-section (3) of Section 5 was to put the said notification in abeyance, with the result that the local areas to which it related were not brought within the municipal limits. It is also an undisputed fact that the stay order passed by the learned Single Judge was in force from August 2, 1978 to October 23, 1978. It is, however, urged that with the dismissal of the writ petition by the learned Single Judge on October 23, 1978, the impugned notification was brought into effect and, therefore, the State Government could not proceed with the election without delimitation of wards and preparation of fresh electoral rolls. We are afraid, the contention cannot be accepted.
79 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 19.4. Similar was of the view of the Hon'ble Apex Court in State of Maharashtra vs. Jalgaon Municipal Council (supra). 19.5. Thus, in the above circumstances, it is clear that when the limits of a Corporation and/or a municipality are changed, the delimitation exercise is required to be carried out in terms of Section 13, reservation fixed in terms of Section 11 and thereafter elections to be held.
20. Answer to Point No.7: Whether the provisions of Section 358 of the Act could apply to a newly formed City Municipal Council by conversion of Town Municipal Council and merger of panchayats is carried out?
20.1. It has been contended by Sri. Jaykumar S.Patil, learned Senior Counsel as also by Sri. Dhyan Chinnappa, learned Senior Counsel and Additional Advocate General 80 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 that the provision of Section 358 would not apply to a newly formed CMC, but it would apply only if Panchayat is converted into a smaller urban area. They contend that in the present case, a Panchayat has been merged with the CMC and not converted into a CMC. Therefore, Section 358 would not apply.
20.2. Such a contention by both the senior counsel, if accepted, would lead to an anomalous situation inasmuch as the elected councillors to the TMC would continue to be councillors of the CMC, the Panchayat being dissolved, the term of the elected Panchayat members would come to an end. The Government would nominate additional councillors in the place of the Panchayat members who have vacated the 81 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 office. Such nomination of additional councillors would in our considered opinion be in violation of Article 243-R and/or 243- T of the Constitution.
20.3. The nomination and/or continuation of the TMC as a CMC would be without delimitation, without the creation of wards fixing the reservation roaster and without holding of elections; thereby, the area which is got absorbed into the CMC would not be adequately represented thereby violating the basic tenets and principles of democracy.
20.4. The appellants herein contend that the elected body of the TMC would continue as the elected body of the CMC whereas the respondents contend that elected body of 82 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 TMC stood dissolved with the conversion or the absorption.
20.5. The learned Single Judge has rightly applied Section 358 of the Act to address the above anomaly, since, it is only Section 358 of the Act which would address such a situation. We are in agreement with the learned Single Judge and are of the opinion that when there is a conversion of a TMC into a CMC with the absorption of the Panchayat happening at the same time, then it is only Section 358 of the Act which could be applied. In such a situation, the elected representatives of the TMC and the Panchayat would continue to operate as the elected members of the CMC as interim municipal councillors, and the State would have to hold elections within a period of six 83 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 months from such Constitution of an interim municipal council.
20.6. Sri. Dhyan Chinnappa, learned Senior Counsel and Additional Advocate General has further contended that if elections are held every time when there is a conversion of a TMC to a CMC or absorption of a Panchayat or a part of Panchayat, then the political party in power, which is in Government could resort to the above methodology to dissolve a CMC or a TMC. Though such a submission made would offer challenges, we are of the considered opinion that the concerned Government would act in a mature manner and not resort to the above. If such action is taken for a malafide purpose or reason, the same would always be amenable to judicial 84 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 review. Merely because there is a possibility of abuse of power, we can not accede to the contention of Sri.Dhyan Chinnappa, learned Advocate General. If there is an abuse of power, the same can always be agitated before the appropriate forum.
20.7. It is therefore required that any conversion of a TMC to a CMC and or merger of an entire Panchayat area or a portion of Panchayat in a TMC or CMC or the like, i.e., to say any action in terms of Sections 359, 360, 361 and 362 of the Act etc., would have to be done within a period of at least six months prior to the term of existing TMC/CMC/Panchayat coming to an end so that there is no such abuse of power resorted to.
85 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 20.8. In view of the above, we are of the considered opinion that the only provision which would be applicable to the present case is Section 358 of the Act since the exercise of powers under Section 359 (1)
(j) or Section 360 (d) would not serve the purpose and more so, that Sections do not provide for simultaneous exercise of powers under those sections. In view thereof, we hold that Section 358 would apply to newly formed CMC by way of conversion of TMC and merger of panchayats.
21. Answer to Point No.8: Does the judgment of the learned Single Judge suffer from legal infirmity requiring interference? 21.1. Coming to the facts of the case, it is seen that the notification for up-gradation of the TMC to CMC was issued only on 86 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 27.06.2019, the notification to absorb Arishinakunte and Basavanagudi gram panchayats came to be issued on 26.12.2019, so also the notification to absorb a part of Vajrahalli and Vishveshwarapura into Nelamangala CMC was issued on 26.12.2019. This is subsequent to the election to the TMC, which were held according to the appellants in the early part of the year 2019 (though no document has been produced in this regard).
21.2. It is rather surprising that it is only after the elections to the TMC were held in the beginning of 2019 the aforesaid notifications came to be issued, resulting in the creation of a larger CMC, dissolving of 87 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Panchayats of 4 villages as also nomination of additional councillors.
21.3. It is also not clear as to in what manner the dissolution of the Panchayat of Vajrahalli and Visveshwarapura have been effected inasmuch as it is only a partial area of Vajrahalli and Visveshwarapura which have got merged/absorbed into the Nelamangala CMC. The Government has also been silent on this aspect in its appeal in WA No.227/2021. We stop short of holding that there are any malafides in the said conversion/up-gradation of a TMC to a CMC as also the absorption of two entire Gram Panchayats and two partial Gram Panchayats since we do not believe that a Government would act in such a manner. 88 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 21.4. The learned Single Judge has considered all these aspects and has come to a reasoned conclusion that Section 358 of the Act would be applicable and an interim Council would come into being for a period of six months and thereafter elections have to be held to the newly formed CMC after carrying out delimitation exercise and fixing the reservation roaster i.e., fulfill the requirement of Sections 11 and 13 of the Act. This in our considered opinion was the only proper order that could have been passed in the given facts and circumstances. More so, when the say of the Councillors of the erstwhile Nelamangala TMC is that they were continued to be councillors for a period of five years from the time of the constitution 89 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 of the CMC and the Panchayats could only be represented by the Additional Councillors nominated by the Government in the said period of 5 years.
21.5. As aforestated the population of the TMC was less than 40,000. The TMC had 23 wards represented by 23 councillors or that the CMC coming into being the population stood increased to more than 70,000. Thus 30,000 additional population would be represented only by four additional councillors who are nominated by the Government. As aforestated, such an action by the Government is anathema to the concept of democracy. 30,000 people who are added to the CMC have a right to be represented by a person of their choice. Democracy being a Government of the 90 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 people, by the people, for the people, the same gets violated if the contention of the Government is accepted. The Government ought to have realised the consequence of such a decision before taking the said decision. These aspects ought to have been considered, necessary legal opinion obtained and thereafter, a decision was required to be taken. The learned Additional Advocate General has not been able to support the decisions of the Government by any cogent reasons or provision of law. In such circumstances, the learned Single Judge has rightly held that the elections would have to be held in respect of the newly constituted CMC. We do not find any reason to interfere with the same. The time fixed by the learned Single 91 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 Judge for holding the election is extended by a period of two months from the date of receipt of certified copy of this order.
22. Be that as it may, there are certain protective steps to be taken in this regard so as to prevent any such occurrence in the future. Hence, we issue the following directions:
22.1. Any conversion/up-gradation of a TMC to a CMC would have to be done in such a manner that the entire process is completed much before six months of term of the present Council coming to an end.
Once elections are held, no such conversion/up-gradation to be done till the end of the term when such exercise can be taken up, though the process could be taken up at the time nearing the end of the term so as to complete it within the above 92 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 said six months prior to the end of the term.
22.2. Any conversion/up-gradation of a Panchayat to a TMC to be done in such a manner that the entire process is completed within six months prior to the due date of the election. Once elections are held, no such conversion/upgradation to be done, till the end of the term of the present Panchayat, though the process could be taken up at the time nearing the end of the term so as to complete it within the above said six months prior to the end of the term.
22.3. Any absorption of a TMC into a CMC to be done in such a manner that the entire process is to be completed within six months prior to the due date of the 93 WA NO.46 OF 2021 C/W WA NO.227 OF 2021 election. Once elections are held, no such conversion/up-gradation to be done till the end of the term of the present Council, though the process could be taken up at the time nearing the end of the term so as to complete it within the above said six months prior to the end of the term. 22.4. Any absorption of a Panchayat (whole or part) to be done in such a manner that the entire process is to be completed within six months prior to the due date of the election. Once elections are held, no such conversion/up-gradation to be done till the end of the term of the present Council, though the process could be taken up at the time nearing the end of the term so as to complete it within the above said six months prior to the end of the term. 94 WA NO.46 OF 2021
C/W WA NO.227 OF 2021 22.5. The delimitation exercise to be carried out at least five months prior to the elections; 22.6. Reservation of seats to be carried out at least four months prior to the elections.
23. Answer to Point No.9: What Order?
23.1. In the result, the Writ Appeal stands dismissed by affirming the order dated 05.01.2021 passed by the learned Single Judge in W.P.No.11725/2020 c/w W.P.No.6398/2020.
Sd/-
JUDGE Sd/-
JUDGE Prs*