Karnataka High Court
H.C. Yatheesh Kumar And Ors. vs The Karnataka Election Commission And ... on 30 June, 2005
Equivalent citations: ILR2005KAR3323, 2005 A I H C 3855, (2005) 3 KCCR 2253, 2005 AIR - KANT. H. C. R. 1901
Author: H.N. Naga Mohan Das
Bench: H.L. Dattu, H.N. Nagamohan Das
ORDER H.N. Naga Mohan Das, J.
1. Father of the Nation Mahatma Gandhi wrote in the weekly 'Harijan' as under:-
"True Democracy cannot be worked by twenty men sitting at the center. It has to be worked from below by the people of every village...."
"Independence must begin at the bottom. Thus, every village will be a republic or Panchayat having full powers. It follows, therefore, that every village has to be self-sustained and capable of managing its affairs even to the extent of defending itself against the whole world. It will be trained and prepared to perish in the attempt to defend itself against any on slaught from without. Thus, ultimately, it is individual who is the unit. This does not exclude dependence on and willing help from neighbours or from the world. It will be free and voluntary play of mutual forces. Such a society is necessarily highly cultured in which every man and woman knows what he or she wants and, what is more, knows that no one should want anything that others cannot have with equal labour".
2. After independence, India became Republic in 1950 by accepting the world's biggest written Constitution. The preamble of the Constitution reads as under:-
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVERIGN SOCIALIST SECULAR DEMOCRATIC Republic and to secure to all its citizens:
Justice, Social, Economic and Political;
LIBERTY of thought, expression, belief, faith and workship;
EQUALITY of status and of opportunity;
And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation:
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION".
Under Chapter IV of our Constitution the Directive Principles of State Policy, Article 40 emphasises that the State shall take steps to organise Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-governance. Time and again the Supreme Court of India emphasised that social justice and decentralisation of powers as also the basic features of our Constitution. Pursuant to this Constitutional imperative of decentralisation of powers and social justice then the Government of Mysore brought a legislation called the Mysore Village Panchayats and Local Boards Act, 1959. Under this Act of 1959 elections to the Panchayats were held during 1960 by giving due representation to women, Scheduled Caste and Scheduled Tribes, Subsequently the Government of Karnataka replaced the Act, of 1959 by a new Act called Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983.
3. Realising the importance of local self governance units in building the nation, the law makers brought to the fore by 73rd amendment to the Indian Constitution the role of Panchayats or Village Councils. By this 73rd amendment to the Constitution the excluded sections of the society were included in governance by making special provisions for Scheduled Tribes, Scheduled Castes, Backward Communities and Women. The reservation to these categories is an discriminated communities to move away from discrimination and segregation. In order to achieve this object of 73rd amendment of the Constitution the Government of Karnataka legislated the Karnataka Panchayat Raj Act, 1993 (for short 'Act of 1993') providing a three tyre system i.e., Gram Panchayats, Taluk Panchayats and Zilla Panchayats. Under the Act of 1993, reservation for Scheduled Tribes, Scheduled Castes, Backward Communities and women is provided. Under the Act, of 1993 the first election was held in the year 1995 and the second election was held in 2000. The term of five years of second election will come to an end by middle of July 2005. The preparation for third term of election is on.
4. The Report of 2001 census came to be published in the month of August 2004. On the basis of 2001 census, the Government of Karnataka, vide its notification dated 15-3-2005 notified fixing the number of seats in Taluk Panchayats and the Zilla Panchayats and also quantified the number of reserved seats for different categories. On the basis of this notification of the Government the 1st respondent State Election Commission undertook the exercise of delimitations of Constituencies of Taluk Panchayats and Zilla Panchayats in the State of Karnataka. Accordingly, the 1st respondent State Election Commission issued notifications on different dates between middle of April and end of May 2005 to all the Zilla Panchayats and Taluk Panchayats in the State. So also, the 1st respondent State Election Commission issued notification allotting the seats of reserved categories to different Constituencies in the Taluk Panchayats and Zilla Panchayats.
5. The petitioners in these writ petitions are voters in different villages in the State of Karnataka and they are eligible and qualified to contest for the post of Taluk Panchayat member the Zilla Panchayat member. The petitioners in all these petitions have prayed to strike down the Karnataka Panchayat Raj (Reservation of seats in Taluk Panchayats and Zilla Panchayats by Rotation), Rules 1998 (hereinafter called the 'Rules 1998') as illegal, void and ultra vires to Article 243D of the Constitution read with Section 162 of the Karnataka, Panchayat Raj Act, 1993. It is further prayed for a writ of certiorari to quash the notifications issued by the 1st respondent State Election Commission relating to delimitation of the Constituencies and reservation of the Constituencies in Taluka Panchayats and Zilla Panchayats in the State.
6. Sri S.P. Shankar, Sri Raviverma Kumar and Sri Jai Kumar S. Patil, Learned Senior Counsel for the petitioners contend the Rules, 1998 are ultra vires to Article 243-D of the Constitution and Section 162 of the Parent Act 1993. It is contended that under the impugned Rules of 1998, the reserved seats for Scheduled Tribes and Scheduled Castes are allotted to Taluks and on the basis of population and as such the same is contrary to Article 243-D of the Constitution. The seats of a Zilla Panchayat are to be allotted to different Constituencies in a Zilla Panchayat area and not one to each Taluk and its population and therefore the same is bad in law. It is contended that in Sub-rule (3) and (4) of Rule 3 of the Rules 1998, the Deputy Commissioner in the case of Taluk Panchayats and the Government in the case of Zilla Panchayats are given power to allot the seats reserved for backward classes and women respectively by taking into consideration such factors as may deem fit. The Rules 1998, do not define or specify what are such factors to be taken into consideration. In the absence of a specific guide line in the Rules the power given to the Deputy Commissioner and the State Government under Sub-rule (3) and (4) of Rule 3 of the Rules 1998 are unguided and arbitrary. Therefore, the Rules 1998, are liable to be struck down. It is further contended that in the proviso to Sub-rule (4), it is stated that the seats reserved in Taluk Panchayat or Zilla Panchayat are to be allotted to different Constituencies by taking into consideration the allotment made in the previous term only. This approach in the Rules 1998, is contrary to Article 243-D wherein it is stated that by rotation the seats are to be allotted to different constituencies in a Panchayat.
7. A.V. Gangadharappa, Sri Ashok Haranhalli, Sri M. Shivappa, and Sri Nagarajappa, learned Counsels for some of the petitioners contend that the present system of allotment of seats under the Rules 1998 to different Constituencies is contrary to Section 162 of the Act, 1993. Under Article 243-D of the Constitution and also under Section 162 of the Act, 1993 the seats reserved for different categories are to be allotted by rotation to different Constituencies in a Panchayat. But, under the impugned Rules 1998, the purpose and object of rotation is completely ignored by introducing the word 'previous term'. Allotment of seats reserved for different categories by only taking into consideration the allotment in the previous term resulted in perpetuation of certain constituencies to certain categories alone. It is contended that the petitioners are not heard and no opportunity was given to them before the 1st respondent issued the impugned notifications relating to the delimitation of constituencies and allotment of reserved seats to different Constituencies. Thus the petitioners are condemned unheard. It is further contended that the Division Bench of this Court in Channigappa and Ors. v. State of Karnataka and Ors., ILR 2000 Karnataka 2941, issued a mandamus directing the respondents to give an opportunity to the affected parties when the Government exercises its statutory power and acts in the matter of rotation/ delimitation/adjustment of seats. Therefore, the present impugned notifications relating to delimitation and allotment of reserved seats to different constituencies is in clear violation of the direction issued by this Court in Channigappa's case.
8. Reliance is placed on the following decisions:-
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AIR 1977 SC 1516 AIR 1988 SC 876 1955 (5) SCC 346;
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ILR 2001 Karnataka 5354;
ILR 2002 Karnataka 35;
;
9. Per contra, Sri B.T. Parthasarathy, learned Advocate General, contends that under Article 243-O of the Constitution, there is a clear bar for the Courts to interfere with electoral matters. The prayer in the writ petition relates to the delimitation of constituencies and reservations of Constituencies for various categories in the election scheduled to be held for the term 2005 and 2010 and therefore the writ petitions are liable to be dismissed. It is further contended that the Rules 1998 framed are in conformity with the parent Act of 1993 and also Article 243-D of the Constitution. It is submitted that there are clear guide lines under Article 243-D, Section 162 of the Act and Rules 1998 for reservation of seats to different categories and by following these guide lines the impugned notifications relating to delimitation and reservation of Constituencies are issued by the 1st respondent and there are no irregularities and they are in accordance with law and calls for no interference by this Court.
10. Sri D.L.N. Rao and Sri K.N. Phaneendra, Learned Counsels for the State Election Commission, contends that under Section 311 of the Act, 1993 the Government is empowered to frame Rules. Further, the Rules so framed by exercising power under Section 311 shall have effect as if enacted in the Act. Therefore, the Rules framed under the rules of 1998 are part and parcel of the parent Act, 1993 and therefore, the question of Rules are contrary to the Act will not arise. It is contended that the State Election Commission has undertaken the delimitation of Constituencies by framing guidelines and notified the same in the Gazette notification dated 17-3-2005. This notification dated 17-3-2005 clearly indicates as to how the State Election Commission undertook the work of the delimitation. The guidelines set-out by the State Election Commission in the Gazette Notification dated 17-3-2005 Annexure-R.5 are clear, proper, just and in the interest of public. Therefore, the delimitation of the Constituencies by the State Election Commission is in conformity with the parent Act of 1993 and also the guidelines framed by it.
11. It is further contended that the State Election Commission while alloting reserved seats to different Constituencies has strictly followed the Rules 1998. The population of every taluk within each District is taken into consideration for allotting the reservation of the seats falling within each taluk. On the basis of descending order of SC population and ST population, the seats reserved for these categories are allotted. While alloting the reserved categories to different Constituencies the State Election Commission has taken into consideration only the previous term as specified in the proviso to Rule 4 of the Rules 1998. Therefore, the allotment of reserved seats to different Constituencies is in accordance with the Rules of 1998 and the same do not call for interference. It is further contended that by taking into consideration, the reservation of seats to different categories in the previous term of 2000 Election, the present notification of reservation is issued. Therefore, there is a change in the present impugned notification when compared to the reservation of seats in the previous term of 2000. This change of reservation of seats is rotation of reserved seats to different constituencies in the Panchayat and the same is in accordance with law.
12. It is contended that in Chanigappa's case, the Division bench of this Court has upheld the validity of Act, 1993 and also the Rules framed thereunder and therefore, again the same cannot be called in question in these writ petitions. It is contended that though there is a direction by this Court in Channigappa's case to hear the affected parties by giving them an opportunity to have their say in the matter of rotation / delimitation / adjustment of seats, the same do not survive for consideration in view of the fact that subsequently the Apex Court held that no natural justice is required to be followed in the matter of delimitation and reservation of seats. It is contended that the principle on which a direction is issued in Channigappa's case, is now reversed by the Apex Court and therefore, the direction issued in Chanigappa's case is erased. Reliance is placed on the following decisions.
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AIR 1960 SC 440 ;
;
;
;
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ILR 2000 Karnataka 2941;
;
;
13. Heard the arguments and perused the entire writ papers. On the basis of pleadings and the arguments submitted at the Bar, the following questions will arise for our consideration.
1. Whether this Court has no jurisdiction to entertain the writ petitions under Articles 226 of the Constitution in view of the bar under Article 243-O of the Constitution of India?
2. Whether the Karnataka Panchayat Raj (Reservation of Seats in Taluka Panchayats and Zilla Panchayats by Rotation), Rules, 1998 are ultra-virus to Section 162 of the parent Act of 1993 and Article 243-D of the Constitution of India?
3. Whether the impugned notifications issued by the State Election Commission on different dates between mid-April and end of May, 2005 relating to the allotment of reserved category seats to different Constituencies are contrary to Parent Act, 1993 and Article 243-D of the Constitution?
4. Whether the impugned notifications issued by the State Election Commission on different dates between mid April and end of May 2005 relating to delimitation of the constituencies in Zilla Panchayat and Taluka Panchayats are liable to be quashed?
On Point No. 1:-
14. Article 243-O of the Constitution reads as under:-
"243-O. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution,-
a) validity of any law relating to the delimitation of constituencies or the allotment of seats to such Constituencies, made or purporting to be made under Article 243-K, shall not be called in question in any Court;
b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.
Article 243-K(1) reads as under: -
"243-K. Elections of the Panchayats.- (1) The Superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor".
15. The Learned Advocate General contends that the impugned notifications issued by the 1st respondent State Election Commission relating to delimitation of Constituencies and allotment of reserved category seats to different Constituencies in Zilla Panchayats and Taluka Panchayats are matters relating to election issued under Article 243-K(1) of the Constitution and therefore, the same cannot be called in question under Article 226 of the Constitution since there is a bar under Article 243-O of the Constitution. This contention of the Learned Advocate General is unacceptable to us. The impugned notifications relating to delimitation and allotment of reserved category seats to different Constituencies are issued before the issue of programme of elections by the first respondent. It is not in dispute that the 1st respondent State Election Commission has not yet notified the programme of elections. The term 'election' referred to in Article 243-K relates to the proceedings commencing from the date of notification of election till the date of declaration of results. Therefore, the impugned notifications relating to delimitation of Constituencies and allotment of reserved category seats to different Constituencies are not the matters relating to the proceedings commencing from the date of notification till the date of declaration of results.
16. Article 243-O(a) specifies that the validity of any law relating to delimitation of Constituencies or allotment of seats to such Constituencies cannot be called in question in any Court. There is no reference in Article 243-O with regard to the word 'rotation'. The absence of the word 'rotation' in Article 243-O of the Constitution makes it clear that there is no bar for the Courts to exercise its judicial review in the matter of allotment of seats by rotation to different constituencies.
17. The learned Advocate General in support of his contentional placed reliance on a decision of the Supreme Court in Election Commission of India v. Ashok Kumar and Ors., . In this case, the Election Commission of India, announced the programme for the general election to constitute the 13th Lok Sabha. After the commencement of the process of election two writ petitions were filed before the High Court of Kerala challenging the validity of the election notification, issued by the Election Commission of India. The High Court granted an interim order by exercising its power under Article 226 of the Constitution staying the counting of votes pending disposal of the writ petitions. Against this interim order granted by the High Court, the Election Commission of India, filed Special Leave Petitions before the Supreme Court of India. The Supreme Court of India allowed the Special Leave Petition and set aside the interim order passed by the Kerala High Court. But in the instant writ petitions before us, the 1st respondent State Election Commission has not issued any notification commencing the process of election. In the writ petitions before us, the validity of Rules 1998 and the notifications relating to delimitation and allotment of seats to different Constituencies are called in question. Therefore, the facts in Ashok Kumar's case are entirely different from the facts in the writ petitions before us. Therefore, the decision in Ashok Kumar's case (supra) will not come to the aid of the respondents. On the other hand the law laid down by the Apex Court in Ashok Kumar's case will help the contention of the petitioners in the writ petitions before us. The Apex Court in Ashok Kumar's case held in paras 31 and 32 as under:-
"31. The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question" in the body of Article 329(b) and these words provide the terminative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election" the bar of Article 329(b) is attracted. Else it is not.
32. For convenience sake we would now generally sum up our conclusion by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely interpreted to as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is availale if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
(5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material".
In view of the law laid down by the Supreme Court in Ashok Kumar's case, there is no bar for this Court to entertain the writ petitions under Article 226 of the Constitution before us.
18. A Division Bench of this Court in A. Ramdas and Ors. v. State of Karnataka and Ors., ILR 2001 Karnataka 5354 held as under:-
"17. First attending to the objection raised regarding jurisdiction of this Court to entertain pleas of constitutional invalidity of the impugned notification based on Article 243-ZG, Section 21(1A) of the Municipal Act, Section 13(1A) of the Corporation Act, in our considered opinion, in view of the pronouncement of the Supreme Court in the case of L. Chandra Kumar v. Union of India, the above provisions sought to ouster the jurisdiction of the Court cannot apply to High Courts and the Supreme Court since if any such interpretation is sought to be put, the provisions may fact the risk of being declared unconstitutional. In para 99 of the judgment, it has been declared by the Supreme Court that-
"The jurisdiction conferred upon the High Court under Article 226 and 227 of the Constitution, and upon the Supreme Court under Article 32 of the Constitution in part of the innoviolable basic structure of our constitution. While this jurisdiction cannot be ousted, the other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Article 226 and 227 and 32 of the Constitution".
18. Therefore, though under the Constitution and the respective Acts the jurisdiction of the Courts and the Tribunals inferior to High Court can be ousted but not that of High Court itself. Therefore, objection raised by the learned Advocate General regarding jurisdiction of this Court to entertain constitutional validity of the notification cannot be accepted".
We are in respectful agreement with the law laid down by this Court in A. Ramdas (supra). Therefore, we decline to accept the contention of the learned Advocate General that this Court cannot entertain the writ petitions as not maintainable and that, there is a bar for this Court to entertain the writ petitions. Accordingly, Point No. 1 is answered against the respondents.
On Point No. 2:-
19. Sri D.L.N. Rao, learned Counsel for the 1st respondent State Election Commission contends that a Division Bench of this Court in Channigappa's case held the Constitutional validity of Rules 1998 as valid and therefore again the same cannot be called in question in these writ petitions. With great respect, the decision in Channigappa's case does not lay down any legal principle of general applicability and the same is distinguishable on facts and law. In the decision in Channigappa's case does not lay down any legal principle of general applicability and the same is distinguishable on facts and law. In Channigappa's case this Court framed five questions for consideration. The relevant question for our purpose is question No. 3, which reads as under:-
"Whether the reservation now made in terms of the impugned notification is in violation of the rotation rules of 1998 and is in violation of Article 243-D of the Constitution of India?"
In Channigappa's case this Court considered the question whether the notification for reservation is in violation of rotation Rules 1998. The Constitutional validity of Rules 1998 was not the question that was considered. While answering question No. 3 as stated above, this Court observed:-
"We have already held that the said amendment Act is constitutionally valid, and the same reasoning holds good insofar as the constitutional validity of this Rule is concerned".
The Supreme Court of India in Sreenivasa General Traders and Ors. v. State of Andhra Pradesh and Ors., , it is held as under:-
"30. In the ultimate analysis, the Court held in Kewal Krishan Puri case that so long as the concept of fee remains distinct and limited in contrast to tax such expenditure of the amounts recovered by the levy of a market fee cannot be countenanced in law. A case is an authority only for what is actually decides and not for what may logically follow from it. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found. It would appear that there are certain seeking to quantify the extent of corelation between the amount of fee collected and the cost of rendition of service, namely (SCC p.435, para 23): "At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two-thirds or three-fourths, must be shown with reasonable certainly as being spent for rendering services in the market to the payer of fee", appears to be an obiter.
By applying the law laid down by the Apex Court in Sreenivasa General Traders case, we hold that the observation of this Court in Channigappa's case with regard to validity of Rules 1998 was not necessary for purposes of decision in that case and therefore the same is not binding authority. We decline to accept the contention that, This Court cannot go into the question of constitutional validity of Rules, 1998.
20. Sri D.L.N. Rao, learned Counsel for the State Election Commission contends that Section 311 of the Act, 1993 empowers the Government of frame Rules. Sub-section (2) of Section 311 of the Act, 1993 specifies that every Rule made under the Act, shall have effect as if enacted in the Act. Therefore, it is contended that the Rules 1998 are part and parcel of Act, 1993 and therefore the question of Rules are contrary to Act, will not arise. This contention is unacceptable to us. The author Justice G.P. Singh, in 'Principles of Statutory Interpretation' (8th edition 2001), observed as under:-
"(I) 'As if enacted in this Act' formula.- Sometimes a statute contains a provision that subordinate legislation made under it will have effect 'as if enacted in this Act'. The divergence of opinion on the interpretation of these words is too well-known. The Supreme Court of India has, however, emphatically ruled that by the use of 'as if enacted in this Act' formula, subordinate legislation does not lose its character of being subordinate to the parent Act, and that the formula does not bestow "any additional sanctity" to subordinate legislation which if not made within the strict limits of the authority conferred by the parent Act is always open to challenge on the ground that it is unauthorised. In view of these decisions of the Supreme Court the use of this formula in Indian Act has ceased to serve any useful purpose."
Supreme Court of India in General Officer Commanding In-Chief and Anr. v. Dr. Subhash Chandra Yadav and Anr., , held as under: -
"14. This contention is unsound. It is well settled that rules framed under the provisions of a statue form part of the statute. In other words, rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void".
Therefore, we decline to accept the contention that Rules, 1998, became part and parcel of parent Act, 1993 merely because it is stated in Section 311 of the Act, that rules made under the Act shall have effect as if enacted in the Act.
21. Sub-article (1) (2) and (3) of Article 243-D of the Constitution reads as under:-
"243-D. Reservation of Seats.- (1) Seats shall be reserved for-
(a) the Scheduled Castes; and
(b) the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in the Panchayat area or the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to difference constituencies in a Panchayat.
(2) Not less than one-third of the total number of seats reserved under Clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat".
(4) ...
(5) ...
(6) ..."
22. Learned Advocate General contends that in Article 243-D of the Constitution, the law makers made it clear by using the word 'may by rotation' the seats be allotted to different constituencies. Therefore, it is directory and not mandatory. We are not inclined to accept this contention of learned Advocate General. Supreme Court of India, in The Textile Commissioner and Ors. v. The Sagar Textile Mills (P) Limited and Anr., , held that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context and where a discretion is conferred upon a public authority coupled with an obligation the word 'may' which denotes discretion should be construed to mean a command. Therefore, the word 'may be rotation' in Article 243-D of the Constitution and the context it is used is a command and not discretion.
23. The Government of Karnataka translated into reality the constitutional obligation embodied in Article 243-D by enacting Section 162 of the Karnataka Panchayat Raj Act. Section 162 of the Act, 1993 reads as under:-
"162. Reservation of Seats.- (1) Seats shall be reserved by the Government in the Zilla Panchayat,-
(a) for the Scheduled Castes; and
(b) for the Scheduled Tribes;
and number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in the Zilla Panchayat as the population of the Scheduled Castes in the district or of the Scheduled Tribes in the district bears to the total population of the district:
Provided that at least one seat each shall be reserved in a Zilla Panchayat for the persons belonging to the Scheduled Castes and the Scheduled Tribes.
(2) Such number of seats which shall, as nearly as may be one-third of the total number of seats in a Zilla Panchayat shall be reserved by the Government for persons belonging to the Backward Classes:
Provided that out of the seats reserved under this subsection, eighty per cent of the total number of such seats shall be reserved by the Government for the persons falling under category 'A' and the remaining twenty per cent of the seats shall be reserved by the Government for the persons falling under category 'B'.
(3) Not less than one third of the seats reserved for each category of persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and those of the non-reserved seats in a Zilla Panchayat shall be reserved by the Government for women:
Provided that the seat reserved under Sub-sections (1) and (2) and (3) shall be allotted by rotation to different constituencies in the district:
Provided further that nothing contained in this Section shall be deemed to prevent the persons belonging to the Scheduled Castes or Scheduled Tribes or Backward Classes or Women for whom seats have been reserved in a Zilla Panchayat from standing for election to the non-reserved seat in such Zilla Panchayat."
24. A combined reading of Article 243-D and Section 162 of the parent Act, 1993 makes it manifestly clear that the word 'may by rotation' in Article 243-D is understood by the Government of Karnataka as 'shall by rotation' in Section 162 of the Act, 1993. Further, it specifies that;
(1) proportionate to the population of Scheduled Tribes and Scheduled Castes in a Panchayat the seats are to be reserved for these categories;
(2) Out of total number of seats 1/3rd shall be reserved for Backward Classes;
(3) Out of total number of seats in a Panchayat (including seats reserved for SC and ST and BC) not less than one-third number of scats shall be reserved for women;
(4) The reserved seats shall by rotation be allotted to different constituencies in a Panchayat.
25. To implement Section 162 of the Act, Rules 1998 are framed. Sub-rule (1) and (2) of Rule 3 of Rules 1998, read as under:-
"1) Reservation of seats in Taluk panchayats and Zilla Panchayats by rotation.- (1) (a) Out of the seats reserved for the persons belonging to the Scheduled Tribes in a Zilla Panchayat the State Government shall allot by rotation one seat each to the Taluks to the District giving precedence to the taluks having larger population of Scheduled Tribes;
Provided that where the number of seats reserved for the persons belonging to the Scheduled Tribes exceeds the number of taluks in the district, the seats remaining after allocation under this clause shall again be allotted to taluks giving precedence to those having larger population of Scheduled Tribes;
Provided further that, while allotting such seats to the constituencies within a taluk precedence shall be given to the constituencies having larger population of Scheduled Tribes.
(b) The seats reserved for persons belonging to the Scheduled Tribes in a Taluk Panchayat shall be allotted by the Deputy Commissioner by rotation to the constituencies having the highest percentage of population with reference to the population of the taluk, in which seats have not been allotted to them in the previous term.
(2) The seats reserved for Scheduled Castes in Taluk Panchayats and Zilla Panchayats shall be allotted by rotation to the members belonging to the Scheduled Castes in the same manner as specified in Sub-rule (1) above".
(emphasis supplied) As per these Rules, the reserved seats for ST and SC categories in a Zilla Panchayat will be allotted one seat each to the Taluks in the District giving precedence to the taluks having larger population of ST and SC. If the number of reserved seats exceeds the number of taluks in a district then the remaining seats will be allotted to taluks having larger population of ST and SC. For better understanding let us examine the allotment of seats by the first respondent State Election Commission in Kodagu Zilla Panchayat. There are three Taluks in Kodagu Zilla Panchayat. Out of total 29 seats in this Zilla Panchayat 3 seats are reserved for ST and 4 seats are reserved for SC. Following the Rules 1998, the reserved seats to ST and SC are allotted as under: -
Kodagu Zilla Panchayat
------------------------------------------------------------------
Taluk Madikeri Somwarpet Virajpet
------------------------------------------------------------------ST 1 1 1 SC 1 2 1
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26. The Ist Respondent State Election Commission allotted the reserved seats for Scheduled Tribe and Scheduled Caste as stated above by taking into consideration the population of these reserved categories in the respective Taluks and one each to every taluk in a District. Sri. Raviverma Kumar, Learned Senior Counsel contends that this distribution of Zilla Panchayat seats to every Taluk in the District and on the basis of population is contrary to Article 243-D of the Constitution and also Section 162 of the Act, 1993. By this method of allotment of seats as per Sub-rule (1) and (2) of Rule 3 of Rules 1998 prepetuates the reservation of certain Constituencies for certain reserved categories. Somwarpet in Kodagu District is having largest SC population and therefore in every election 2 seats will be allotted to Somwarpet constitutency. Further, this method deprives the Scheduled Tribes and Scheduled Castes category people in other Constituencies to have their representation in the Zilla Panchayat. By perpetuation of reservation in certain constituencies will deprive the other community people in the same constituency from contesting the elections. There is force in this submission of the Learned Senior Counsel and we accept the same. Therefore, the allotment of seats on the basis of population and by Talukwise is contrary to Article 243-D of the Constitution. Article 243-D of the Constitution and Section 162 of the Act 1993, specifies that the reserved seats for Scheduled Tribes and Scheduled Caste are to be allotted by rotation to different Constituencies in a Panchayat. But as per Sub-rule (1) and (2) of Rule 3 of the Rules 1998, the 1st respondent State Election Commission allotted the seats Taluk wise and on the basis of population and as much the same is contrary to the requirement of Article 243-D of the Constitution and Section 162 of the Act, 1993.
27. Sub-rule (3) and (4) of Rule 3 of Rules 1998 read as under: -
"(3) The Seats in Taluk Panchayats and Zilla Panchayats reserved for Backward Classes shall be allotted by rotation by the Deputy Commissioner in the case of Taluk Panchayats and the Government in the case of Zilla Panchayats taking into consideration such factors as the Deputy Commissioner in the case of Taluk Panchayats and the Government in the case of Zilla Panchayats may deem fit.
(4) The seats reserved for women in each category referred to in Sub-rules (1), (2) and (3) shall be allotted by rotation by the Deputy Commissioner in the case of Taluk Panchayats and the Government in the case of Zilla Panchayats to the constituencies taking into consideration such factors as the Deputy Commissioner in the case of Taluk Panchayats and the Government in the case of Zilla Panchayats may deem fit.
Provided that where a seat in a constituency of the Taluk Panchayat or Zilla Panchayat was allotted to a category referred to in Sub-rules (1), (2) or (3) or for a woman during the previous term, the Deputy Commissioner in the case of Taluk panchayats and the Government in the case of Zilla Panchayats shall not as far as possible allot a seat in that constituency to the same category or for a woman in the succeeding term".
(emphasis supplied) A reading of Sub-rule (3) and (4) of Rule 3 of the Rules 1998 makes it clear that, the Deputy Commissioner shall allot the seats reserved for backward classes and women in a Taluk panchayat by rotation by taking into consideration such factors as he may deem fit.
So also the State Government is empowered to allot by rotation the seats reserved for Backward Classes and women in a Zilla Panchayat by taking into consideration such factors as it may deemfit. the Rules do not specify what are the factors to be taken into consideration while alloting seats reserved for Backward classes and women. No guidelines are frames as to what are the factors that they will take into consideration while allotting the reserved seats for Backward classes and women. The learned Advocate General submits that no census figures are available in so far as the Backward classes are concerned and therefore, it is practically not possible to frame any guidelines or to specify the factors that are to be taken into consideration. The non-availability of census figures relating to Backward classes is not a ground for not framing guide lines. Even in the absence of census figures for these categories, it is possible for the respondents to specify what are the factors that are required to be taken into consideration while alloting the seats reserved for Backward classes and women. In the absence of specific guidelines in the Rules as to what are the factors that will be taken into consideration leads to the vesting of arbitrary power in the hands of Deputy Commissioner and the Government in the matter of allotting seats in Taluk Panchayats and Zilla Panchayats for reserved category of Backward Classes and women. A voter in a Constituency is entitled to know as to how and in what manner and by taking what factors into consideration the seats reserved for backward classes and the women are allotted by rotation. Therefore, the unguided power given to the Deputy Commissioner and the State Government under Sub-rule (3) and (4) of Rule 3 of the Rules 1998 is arbitrary and opposed to Section 162 of the parent Act, 1993 and Article 243-D of the Constitution.
28. Proviso to Sub-rule (4) of Rule 3 of the Rules 1998 reads as under:
"Provided that where a seat in a constituency of the Taluk Panchayat or Zilla Panchayat was allotted to a category referred to in Sub-rules (1), (2) or (3) or for a woman during the previous term, the Deputy Commissioner in the case of Taluk panchayats and the Government in the case of Zilla Panchayats shall not as far as possible allot a seat in that constituency to the same category or for a woman in the succeeding term".
(emphasis supplied) The State Election Commission in its counter stated as to how it understood the proviso to Sub-rule (4) of Sub-rule 3 as under:-
"12. It is submitted that the State Election Commission is bound by the Act and the Rules framed by the State Government while exercising its powers of reservations and allotment of seats. The State Election Commission cannot ignore the said Rules framed by the State Government and cannot go beyond the said Rules. It is submitted that Rule 3(1)(b) of the Karnataka Panchayat Raj (Reservation of seats in Taluk Panchayats and Zilla Panchayats by Rotation) Rules, 1998 has in very clear and unambiguous terms stated that the rotation of reservation to constituencies shall be with reference to its population and population of the taluk in which seats have not been allotted in the previous term. The stress in the said Rule is with reference to "Previous Term". Hence, the State Election Commission has taken the reservation smade during only the "Previous Term" for consideration, the previous term being 2000. It is submitted that the contention of the petitioners that the State Election Commission should have taken even the reservations made during the year 1995 also into consideration is untenable and would run contrary to Rule 3(1)(b) of the said Rules. If the intention of the Legislature was to take into consideration the reservations made in all previous elections, the word "Terms" would have been included in the place of "Term" as is presently found. The Legislature in its wisdom has confined the rotation of reservations to only "Previous Term" and hence, the 1st respondent has taken the reservations made only during the previous term into consideration. A reference to the proviso to Rule 4 of the said Rules would also clearly show the intention of the Legislature confining the rotation of reservation with reference to only the "Previous Term"
The intention of the law makers in using the word 'rotation' in Article 243-D is not to perpetuate the reservation of certain constituencies for certain categories only. The object is to provide an opportunity to every section of the society to have the representation in local governance. By allotting the reserved seats on rotation to different constituencies in a Panchayat will preserve the unity and integration of village community.
30. The way in which the first respondent understood the word 'previous term' in the proviso to Sub-rule (4) of Rule 3 of the Rules 1998 is better illustrated in the notification issued to Somwarpet Taluk of Kodagu Zilla Panchayat in the chart Annexure-D to W.P.No. 14625/ 2005, and the same is as under:-
31. A perusal of the Chart Annexure-D, makes it clear that in the election held in 1995 Kodalipet Zilla Panchayat Constitutency was reserved for SC women, in 2000 reserved for BC-A and now in 2005 it is again reserved for SC women. If this method of allotting the reserved seats is followed in future this Kodalipet Constituency may be rotated only among SC women and BC-A for all the times to come. This amounts to perpetuation of reservation of a constituency only among certain reserved categories in the said constituencies from contesting the election. Further, this method deprives the reserved categories in other constituencies from contesting the election. Thus Sub-rule (4) of Rule 3 and the way in which it is understood by the State Election Commission defeats the purpose and object of rotation. In order to allot a reserved seat to different constituencies by rotation reservation made in all the previous term shall be taken into consideration. Therefore, Sub-rule (4) of Rule 3 of Rules 1998 is contrary to Article 243-D of the Constitution and Section 162 of the Act, 1993. For the reasons stated above, we hold the Rules 1998 are ultra vires to Article 243-D of the Constitution and Section 162 of the parent Act, 1993.
Point No. 3:-
32. The impugned notifications relating to allotment of reserved category seats to different constituencies in Zilla Panchayat and Taluk Panchayats are based on the Rules 1998. Since, we have held the Rules 1998 as ultra vires to Article 243-D of the Constitution and Section 162 of the Act, 1993, the impugned notification relating to allotment of reserved seats to different constituencies issued by the 1st respondent Election Commission are liable to be quashed. Accordingly, they are quashed.
Point No. 4:-
33. Under the Act, 1993 two elections are held in 1995 and 2000. The number of seats in these two elections are determined on the basis of 1991 census figures. Now 2001 census figures are relased in August 2004. The Government vide its notification dated 15-3-2005 notified the total number of seats in every taluk Panchayat and Zilla Panchayat based on the census figures of 2001. There is marginal increase in total number of seats in Taluk Panchayats and Zilla Panchayats when compared to previous election in 2000. Due to this increase in population it became necessary to increase the number of constituencies in Taluk Panchayat and Zilla Panchayat areas. The first respondent State Election Commission got prepared through Satellite Mapping a map showing the population and boundaries of every village, Gram Panchayat and Taluks and the connecting Roads, Highways Railway lines, etc. The 1st respondent also issued a notification on 17-3-2005 gazetted on 18-3-2005 notifying the guidelines for the purpose of delimitation. Subsequently a corrigendum notification was issued on 5-4-2005. As per the guidelines a scientific and systeamatic method is adopted for delimitation of constituencies. In W.P.No. 14387/2005, it is alleged that the first respondent has not followed the guidelines set out for itself. Fairly the first respondent filed an affidavit on 23-6-2005 undertaking to provide a post facto opportunity of hearing to the affected petitioners in this writ petition. This undertaking of the 1st respondent to provide post facto opportunity of hearing to the affected parties is substantial compliance of directions issued in Channigappa's case.
34. In the notification dated 17-3-2005 gazetted on 18-3-2005 clear and specific guidelines are framed for delimitation of constituencies. By adopting a scientific and systematic method the first respondent undertook the exercise of delimitation. At the time of arguments except in three writ petitions no irregularity is brought to our notice on the question of delimitation. In view of the undertaking given by the first respondent to give post facto hearing to the aggrieved writ petitioners we decline to interfere with the notifications of delimitation of constituencies. Accordingly, the writ petitions questioning the notification of delimitation of constituencies are hereby rejected.
35. Before parting with the case, we wish to add that in the preamble of our Constitution, we resolved to constitute Democratic Republic. Democracy means not merely elections, it also means equal and effective participation of all Sections of society. If certain sections are deprived share in actual power, then there exits no real democracy. In the absence of reservation in favour of ST, SC, BC and women, there is a possibility of power and authority sleeping into the hands of those who are economically and socially advanced. Denial of legitimate share for centuries in the political power or decision making process has been held to be a cause for social and educational backwardness. The empowerment of these Sections in these areas can as well as conducive to their advancement in the rest of the areas in their lives. It is in this background to remove the inequalities and to empower the weaker section of our society the reservation in local bodies is provided. Further, by rotation of these reserved seats to different constituencies is to reach all sections in a Panchayat.
36. Transparency is a must for the growth of healthy democracy. In a democratic form of Government, voters have right to know as to how the delimitation of constituencies is done and how the reserved categories of seats are allotted by rotation to different constituencies in a Panchayat. Holding election to Panchayats regularly is very important. Equally it is more important to hold free and fair elections to achieve the constitutional object of social justice and decentralisation of powers. We trust the State Government and the State Election Commission to frame necessary rules or guidelines to translate into reality in letter and spirit, the mandate in Article 243-D of the Constitution and Section 162 of the parent Act, of 1993 expeditiously.
37. For the reasons stated above, the following order:-
1) Writ Petitions are partly allowed;
2) We hold the Karnataka Panchayat Raj (Reservation of Seats in Taluk Panchayats and Zilla Panchayts by Rotation) Rules, 1998 as ultra vires and void;
3) The impugned notifications issued by the State Election Commission in sofar as it relates to allotment of reserved seats to different constituencies in each Taluk Panchayat and Zilla Panchayat in the State are herey quashed;
4) The Writ Petitions insofar as it relates to quashing of notifications issued by the State Election Commission delimiting the Taluka and Zilla Panchayats are hereby rejected.
5) No order as to costs.