Karnataka High Court
The National Election Commission vs Sri Yusuf Sharif on 13 December, 2021
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT APPEAL NO. 1349 OF 2021(LB-ELE)
BETWEEN:
1. THE NATIONAL ELECTION COMMISSION
NIVARVACHAN BHAVAN,
ASHOK ROAD, NEW DELHI-110001
REPRESENTED BY ITS SECRETARY
2. THE DEPUTY COMMISSIONER AND
ELECTORAL OFFICER
BENGALURU URBAN DISTRICT CONSTITUENCY,
K G ROAD, BENGALURU-560009
...APPELLANTS
(BY SRI.M.DHYAM CHINNAPPA, SR.ADVOCATE FOR
SRI.DODWAD SHARASCHANDRA RAMESH, ADVOCATE)
AND:
1. SRI YUSUF SHARIF
S/O DASTAGIR SHARIF,
AGED ABOUT 56 YEARS,
NO.22/1, KAVERIYAPPA LAYOUT,
NEAR MAHAVEER JAIN HOSPITAL,
VASANTHANAGAR, BENGALURU-560052
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2. SRI JANARDHAN M
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT NO.214/D, BAHADURPURA,
ANEKAL, BENGALURU URBAN DISTRICT-562106
3. SRI MANJUNATH K
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT 3/52, WARD NO.1, KUMBARPET,
ANEKAL, BENGALURU URBAN DISTRICT-562106
4. SRI SUDHA JAIDHAV K
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT NO.45, WARD NO.2, THIGALARPET,
ANEKAL, BENGALURU URBAN DISTRICT-562106
5. SRI JAGADISH R
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT NO.5, WARD NO.1, JANAPARA BEEDHI,
ANEKAL, BENGALURU URBAN DISTRICT-562106
6. SRI NITHIN V
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT NO.164/01, NEAR LINCON SCHOOL,
SHANKAR LAYOUT, WARD NO.1, ANEKAL,
BENGLURU URBAN DISTRICT-562106
7. SRI K PRABHAKAR
S/O LATE KRISHNAPPA,
AGED MAJOR,
R/AT ANEKAL ROAD, NEAR BEERESHWARA
SWAMY TEMPLE, KUMARA LAYOUT,
ATTIBELE, ANEKAL TALUK,
BENGALURU URBAN DISTRICT-562107
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8. SRI K NATARAJ
S/O KRISHNAPPA,
AGED MAJOR,
R/AT ANEKAL ROAD, NEAR BEERESHWARA
SWAMY TEMPLE, KUMARA LAYOUT,
ATHIBELE, ANEKAL TALUK,
BENGALURU URBAN DISTRICT-562107
9. SRI M VENKATESHA REDDY
S/O MUNIRAJAPPA,
AGED MAJOR,
R/AT NO.831, POST OFFICE ROAD
NEAR BASAVESHWARA TEMPLE, ATHIBELE
ANEKAL TALUK, BENGALURU URBAN DISTRICT-562107
10. SRI NARASIMHA SWAMY
S/O MUNIYAPPA,
AGED MAJOR,
R/AT NO.410, BHUVANESHWARI NAGARA,
ATHIBELE ANEKAL TALUK,
BENGALURU URBAN DISTRICT-572107
11. SRI A M RAJAPPA
S/O MUNIYAPPA,
AGED MAJOR,
R/AT NO.265, JAGAJIVBANRAO NAGARA,
ATHIBELE, ANEKAL TALUK,
BENGALURU URBAN DISTRICT-562107
12. SRI RAGHU
S/O B SUBBAIAH,
AGED MAJOR,
R/AT NO.60, MUTHURAYAPPA TEMPLE STREET,
BOMMASANDRA ANEKAL TALUK,
BENGALURU URBAN DISTRICT-560099
13. SRI PRAKASH
S/O G RAMAREDDY,
AGED MAJOR,
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R/AT NO.72/2, ANNANYA NILAYA,
BOMMASANDRA ANEKAL TALUK,
BENGALURU URBAN DISTRICT-560099
14. SRI B R PRASANNA KUMAR
S/O T RAMAREDDY,
AGED MAJOR,
R/AT NO.130, BANAHALLI VILLAGE,
CHANDAPURA POST, BOMMASANDRA ANEKAL TALUK,
BENGALURU URBAN DISTRICT-560099
15. SRI PRAVEEN KUMAR B M
S/O LATE MALLAREDDY,
AGED MAJOR,
R/AT NO.60, BANAHALLI VILLAGE,
CHANDAPURA POST, BOMMASANDRA,
ANEKAL TALUK, BENGALURU URBAN DISTRICT-560099
16. SRI K S PRADEEP
S/O S SRINIVASAIAH,
AGED MAJOR,
RETIRED HEADMASTER,
R/AT KITHAGANAHALLI VILLAGE,
BOMMASANDRA ANEKAL TALUK,
BENGALURU URBAN DISTRICT-560099
...RESPONDENTS
(BY SRI.B.N.SURESH BABU, ADVOCATE FOR R1;
NOTICE TO R2 TO 16 DISPENSED WITH
AS PER ORDER DTD: 13.12.2021)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO A. QUASH THE IMPUGNED INTERIM
ORDER DATED 09.12.2021 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P. NO. 22478/2021 AND B. ISSUE ANY OTHER ORDER
OR DIRECTIONS, THE HONBLE COURT DEEMS FIT, IN THE FACTS
AND CIRCUMSTANCES OF THE CASE.
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THIS APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF
JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri. Dhyan Chinnappa, learned Senior Counsel appearing for Sri.Dodwad Sharaschandra Ramesh, learned counsel for appellants as well as Sri.B.N. Suresh Babu, learned counsel for respondent No.1.
2. Respondent No.2 to 16 are the respondents in the writ petition and as such they are proforma respondents and notice to them is dispensed with.
3. This intra Court appeal has been filed challenging the interim order dated 9.12.2021 passed by the learned Single Judge in W.P.No.22478/2021 whereby the learned Single Judge as an interim measure has provided that the elections to Bangalore Urban Local Authorities Constituency for the Legislative Council shall go on, the respondents 3 to 17 will be permitted to vote in the elections, the votes cast by private respondents shall be placed in a sealed cover and the 6 result of the elections of the Bangalore Urban Local Authorities Constituency shall not be declared without the leave of the Court, a special ballot box be kept for the voting of the private respondents and such votes be kept in sealed cover. The emergent notice to respondents returnable by 20.12.2021 has been issued. The hand summons has also been permitted and the case has been directed to be next listed on 20.12.2021 for further hearing.
4. The learned counsel for the appellants submits that it was argued before the writ Court that in view of the bar under Article 329 of the Constitution of India, the writ petition after issuance of notification for election for Legislative Council was not maintainable. It is also submitted that Article 243R of the Constitution of India has no applicability to the elections of the Legislative Council. The Article 243R of the Constitution of India relates to composition of Municipalities. In any case, proviso to sub-clause(2) of Article 243R provides that only the persons referred to in paragraph (i) shall not have the right to 7 vote in the meetings of the Municipality. The contention is that it does not mean that such persons would not have the right to vote. It is also contended that in the earlier elections of the Legislative Council, the nominated members of the Municipalities have participated in the election and casted their votes.
5. The learned counsel for respondent No.1, on the other hand, submits that Article 243R of the Constitution of India clearly debars the persons who are nominated to the Municipalities to participate and cast their votes in the meetings of the Municipalities. These persons can participate in the day to day functioning of the Municipalities, however, they cannot cast their votes in the meetings of the Municipalities. The submission is once they do not have any right to vote in the meetings of the Municipalities then, they cannot be given the right to vote in the Legislative Council elections. It is submitted that what is not provided in the Constitution cannot be taken to be granted under the 8 Karnataka Municipalities Act. The submission is that under Section 11 of the Karnataka Municipalities Act, 1964(for short "the Act") constitution of Municipal Councils is provided. Under Section 11(1)(b)(i) and (ii) of the Act, persons having special knowledge and experience in municipal administration or matters relating to health, town planning or education or social workers can be nominated by the Government from among the residents of the municipal area and their number shall not be more than five. It is submitted that restrictions have been imposed on the numbers of nominated members as well as their rights under the Act itself. As such, the question before the writ Court was their right to vote in the Legislative Council elections. It is also submitted that since the writ petition was filed prior to issuance of the notification for elections, it goes to the root of the constitution of the voters' list and as such it was maintainable.
6. We have considered the submissions and gone through the records.
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7. Prima facie, we are of the considered view that the question of participation of nominated members of the Municipalities in the Legislative Council elections was the main question before the writ Court which was required to be adjudicated finally and as such, there was no case for the interim relief. Since the writ petition is pending, we do not want to give any finding on the arguments made by either party before us. We, therefore, modify the order dated 9.12.2021 passed by the learned Single Judge to the extent that the election to the Bangalore Urban Local Authorities Constituency for Legislative Council shall go on uninterruptedly. The nominated members who are respondents 3 to 17 in the writ petition can participate in the election and cast their votes. The result of the election of Bangalore Urban Local Authorities Constituency shall be declared, but, it shall be subject to the final decision in the writ petition.
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8. With these observations, the writ appeal is disposed of.
The pending interlocutory applications, if any, stand disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE *alb/-