Karnataka High Court
Yellappa And Anr. vs State Of Karnataka, By Its Secretary And ... on 3 August, 2004
Equivalent citations: ILR2004KAR3966, 2004(7)KARLJ449, 2004 AIR - KANT. H. C. R. 3223
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Though the matter is listed for orders on I.As I and II, with the consent of learned Counsel for the parties it is taken for final disposal and disposed of as under:
2. I have heard Sri Chandrashekar, learned Counsel for the petitioners, Sri Jayakumar S. Patil, learned Senior Counsel appearing for the impleading applicant/ proposed respondent and Sri H.B Narayan, learned Government Pleader appearing for respondents 1 to 3.
3. I.As I and II are ordered as under:
4. I.A. I is an application filed for impleading the applicant who is a member of the 4th respondent Municipal council himself as party respondent to this Writ Petition and I.A. II is an application filed by the proposed respondent for vacating the interim order dated 27th July, 7004 on the premise that the elections have now been scheduled to be held on 7th August, 2004; that the calender of events have already been issued on 27th July 2004, and in the circumstances it is only fair the interim order should be vacated and the schedule should be allowed to be adhered to. The applications are opposed by the learned Counsel for the petitioners.
5. The stay that has been granted by this court primarily in respect of notification dated 12th July, 2004 and particularly in so far it relates to the SL.No. 53 of the said notification with respect to Shikaripur Town Municipal. A stay order of this nature was granted in respect of this notification in so far as it relates to the post of president at Shikaripur Town Municipal Council as it was noticed that during the last three elections held for electing the president of this Town Municipal Council, the post had not been reserved at all in favour of any category mentioned in Section 42(2-A) of the Karnataka Municipalities Act, 1964 (for short 'The Act') and yet again there is no reservation this time also.
6. Though Sri Jayakumar S. Patil, learned Senior Counsel for the impleading applicant contended that whatever the petitioner claims the post should have been reserved in favour of a person belonging to Schedule Castes cannot be made good in as much as the post of the President for the category of a person belonging to Scheduled Caste which is limited in number has to be worked out and through out the State for the purpose of completing the part of the cycle, the cycle having been commenced with the place where the population of persons belonging to this community is the highest Even if this submission should be taken note of, it nevertheless violates the requirements of reservation at- least l/3rd of the available seats in favour of persons belonging to backward classes under this. This is the 4th term of election and so far no reservation in favour of the backward classes which is required to be provided to an extent of l/3rd which means once in every 3 election. The reservation in favour of backward classes has not happened even in the 4th election for the post of president. The notification is clearly in violation of the requirement of Section 42(2-A) of the Act which reads:
" (2-A) There shall be reserved by the Government in the prescribed manner:-
(a) Such number of offices of president and Vice-president in the State for the persons belonging to the Schedule castes and Schedule Tribes and the number of such offices bearing as nearly as may be the same proportion to the total number of offices in the state as the population of the Schedule castes in the State or of the Schedule Tribes in the State bears to the total population of the State;
(b) Such number of offices of president and vice-President in the State which shall as nearly as may be one-third of the total number of offices of President and Vice-President. in the State for the persons belonging to the Backward Classes;
Provided that out of the offices reserved under this clause, eighty percent of the total number of such offices shall be reserved for the persons falling under category "A" and the remaining twenty percent of the offices shall be reserved for the persons falling under category "B..."
7. Submission of learned Counsel for the proposed respondent is that the calender of events having already been notified this Court should nevertheless permit it to continue and complete the process of election as per the schedule and relief if any can be granted at a later stage etc.
8. The notification being in violation of the provisions of Section 42(2)(A) of the Act can not be sustained. If elections are allowed to be continued at this stage only because the calender of events are notified in pursuance of the notification which is not sustainable in law it will only amount perpetuating an illegality which otherwise can be prevented even at this stage. Yet another justification and need for interference even at this stage is that the provisions of Section 42(2)(A) of the Act have been introduced into the main Act for giving effect to the constitutional mandate as contained in Article 245-D of the constitution. Therefore a violation of the provisions of Section 42(2)(A) of the Act also constitutes the violation of the provisions of Article 243T of the Constitution of India also and it is the duty of this Court to prevent such violation and not to allow the violation to become perpetual.
9. In the circumstances I do not find any justification to permit the respondents to proceed ahead with the election in accordance with the calendar of events in so far as the post of President in Shikaripura Town Municipal is concerned. It is now necessary for the Government to issue a fresh notification in so far it relates to the post of President at Shikaripura Town Municipal Council is concerned inconformity with the requirement of Section 42(2)(A) of the Act and the Rules framed thereunder and proceed further by fixing fresh dates of calendar of events.
10. The notification in so far it relates to the post of President in Shikaripur Town Municipal Council cannot be sustained, the same is quashed by issue of writ of certiorari. Writ petition allowed. Rule issued and made absolute.