Karnataka High Court
K Devan vs The State Of Karnataka on 8 December, 2009
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
] IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 08™ DAY OF DECEMBER, 2009 : PRESENT THE HON'BLE MR.JUSTICE V.GOPALA GOWDA nN snp As THE HON'BLE MRS. JUSTICE 3B.V. NAGARAT HINA W.A.No.4331 /2009(.8-Bie & W.P.Nos.26699/2069 c¢/v7 25293/20099, 25294/ 2009, 35885/2009, 35886/2059, 35917/2009, 35918/2009, 35919/2009, 36138-36145/2009, $6279/2009, 36280/2009, 36282/2009 & | _ 38387/2009 (LB- Ele ) WA No.4331/2009(LB. Ele} BETWEEN: : K-DEVAN -_ S/O LATE KANNAN, .. AGED ABOUT 50 YEARS R/A BEHIND S D°A SCHOOL, 4TH CROSS. KAMMAGONDAHALLI, JALAHALLIWESP BANGALORE. 560015 7 .. APPELLANT (By St. V-LARSHMI NARAYANA, SR.COUNSEL FOR SRI-K SUMAN, ADV) 1. THE STATE OF KARNATAKA - .DEPARTMENT OF URBAN DEVELOPMENT * VIDHANA SOUDHA, -BANGALORE-560 001 ". REPRESENTED BY ITS SECRETARY \-- 2 BRUHAT BNAGALORE MAHANAGARA PALIKE, N R SQUARE, BANGALORE REPRESENTED BY ITS COMMISSIONER . RESPO NENTS (By Sri: K M NATARAJU ADDL A.G. WITH SRI B.VEERAPPA,AGAFORR-1) WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ; ACT PRAYING TO SET ASIDE THE ORDER. PASSED IN THE 'WRIT PETITION NO.28961/2009(LB-ELE) DATED 29/10/2009. | W.P. No.26699/2009(LB-ELE) BETWEEN: R VENKATESH S/O RAMEGOWDA : AGED ABOUT 47 YEARS, R/AT NO.38, IST MAIN, KALYANANAGAR, BANGALORE-720 0. Be ... PETITIONER (By Sri: S.VASUDEVA, ADV.) AND: 1 THE CHIEF SECRETARY ~ GOVERNMENT OF KARNATAKA _ VEDHANA SOUDHA, » VIDHANA VEEDHi, BANGALORE- 566 O72 THE PRINCIPAL SECRETARY - TO GOVERNMENT ., URBAN DEVELOPMENT DEPARTMENT, "ViEASA SOUDHA, -BANGALORE-560 001 ~THi= SPECIAL DEPUTY COMMISSIONER \\ _BANGALORE URBAN, ~ K.G.ROAD, _ BANGALORE-560 009 4 THE COMMISSIONER BRUHATH BANGALORE MAHANAGARA PALIKE N.R.SQUARE, Bo, BANGALORE-560 001 ... RESPONDENTS. ~
(By Sri: K M NATARAJA, AAG, WITH SRI B VEERAPPA, AGA FOR Ri) THIS WP FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEX-A THE FINAL DELIMITATION NOTIFICATION DT. 15.7.2009, WP No.25293/2009 (LB-ELE).
BETWEEN : | SMT KEMPALAKKAMMA AGED ABOUT 60 YRS. --
EX CHAIRMAN,GRAMA PANCHAYATH 2 HORAMAVU AGARA,K. R'PURAM HOBLI Od BANGALORE EAST TALUK (20 ~~ BANGALORE | -- ... PETITIONER (By Sri: KANTA RAJ FOR M/S.NISARGA LAW ASSOCIATES) AND ;
I. STATE OF KARNATAKA REP BY THE SECRETARY DEPT OF URBAN DEVELOPMENT VIKASA SOUDIIA :
BANGALORE-O i .. THE COMMISSIONER "BRUHATH BANGALORE ~ MAHANAGARA PALIKE BANGALORE 5 THE DEPUTY COMMISSIONER
-.. . BANGALORE URBAN DISTRICT ~~. BANGALORE he 4 THE ELECTION COMMISSIONER PARK HOUSE, CUBBON PARK BANGALORE 5 THE EXECUTIVE OFFICER KRISHNARAJAPURA BANGALORE EAST TALUK 6 THE THAHASILDAR BANGALORE EAST TALUK KRISHNARAJAPURAM 7 na BANGALORE me ... RESPONDENTS (By Sri: G NAGARAJULU NAIDU, ADV. FORE R2, --
SRI. K N PHANINDRA, ADV. FOR. R3, SRI K M NATARAJA, AAG, WITH SRI B VEERAPPA, AGA FOR Rl). mS SRI. H THIMAPPA, ADV. FOR Ro, G, Ae FOR R1, RB, RS & R6) THIS WP FILED UNDER. ARTICLES 206 "AND 227 OF THE CONSTITUTION OF INGIA PRAYING: TO: QUASH AND SET ASIDE THE NOTIFICATION DT.15.7.08, BANGALOPE, RESPONDENT PRODUCED AT ANN-A, PERTAINING TO HORAMAVU WARD NO.25.
WP No.25294 OF 2009 tiny BO BETWEEN: | SRIS NATARAJ S/O SUBRAMANI ~ AGED ABOUT 30 YEARS, . BYRATHI VILLAGE, .
- DODDAGUBBI POST.
BANGALORE EAST TALUK, BANGALORE . _.. PETITIONER (By Sri: SRI KANTHA RAJ. ADV. FOR * M/S. NISARGA LAW ASSOCIATES) We 4 NN 1 STATE OF KARNATAKA REP BY THE SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, VIKASA SOUDHA BANGALORE 560001 2 THE COMMISSIONER BRUHATH BANGALORE MAHANAGARA PALIKE BANGALORE 3 THE DEPUTY COMMISSICNER BANGALORE URBAN DIS1 RICT BANGALORE 4 THE ELECTION COMMISSIONER.
PARK HOUSE, CUBBCN PARK © BANGALORE © 5 THE EXECUTIVE OFFICER KRISHNARAGAPURA, That --
BANGALORE EAS? TALUK.. >.
6 THE TAHSILDAR 000 BANGALORE EAST TALUK ... RESPONDENTS (By SRLNAGARAJULU NAIDU, ADV, FOR R2 ". SriH THIMMAPPA, ADV. FOR RS Sri) K M NATARAJA, AAG,
-. WITH SRIB VEERAPPA, AGA FOR R1) | THIS. WP FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE THE EINAL NOTIFICATION ISSUED IN NO.UDD 59 MLR 2009, BANGALORE, _ DTD 15.7.69, BY THE R1 PRODUCED AT ANNEX-A PERTAINING TO . HCODI WARD.NO.54.
'a iy WP No.35885/2009(LB-ELE) BETWEEN:
SHRI G MUNIRAJU 5/O LATE GANGAPPA, AGED ABOUT 46 YRS EX-VISE PRESIDENT, KENGERI TMC R/O NO.348, VALAGERAHALLI PALYA er KENGERI POST, BANGALORE-60 ~ -... PETITIONER, » (By SRLRAVIVARMA KUMAR, SR.COUNSE: FOR | M/S RAVIRARMA KUMAR ASSOCIATES} AND :
1 STATE-OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY ©.» TO GOVERNMENT (os URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA; = BANGALORE 860001, 2 BRUHAT BANGALORE MAHANAGARA PALIZE.
REP BY ITS COMMISSIONER.
N R SQUARE, .. OS BANGALORE -580062- 3° THE KARNATAKA STATE"
. ELECTION COMMISSION
-REP BY ITS COMMISSIONER CUNNINGHAM RGAD BANGALORE -560001 ... RESPONDENTS ' (By Sri: K M HATARAJU ADDL AG WITH B VEERAPPA, AGA SRLNAGARAJUNAIDU, ADV. FOR R2 _ SPLK.N.PHANINDRA, ADV. FOR R3) | THIS' WP FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ©. NOTIFICATION DT.30.11.09, VIDE ANN-A ISSUED BY THE RI. IN THE », . RORTHCOMING ELECTIONS TO THE 198 WARDS OF BRUHAT ~~ BANGALROE MAHANAGARA PALIKE.
\ WP No.35886/2009(LB-ELE} BETWEEN:
SRI M VASANTHA KUMAR AGED ABOUT 29 YEARS S/O M. MUNIVENKATAPPA, NO.337, 2ND A-CROSS, 5TH MAIN BAHUBALI NAGAR, JALAHALLI oe BANGALORE -560001 « ... PETITIONER. » (By Sri: RAVIVARMA KUMAR SENIOR ADV} 1 STATE OF KARNATAKA vo REP BY ITS PRINCIPAL SECRETARY > TO GOVERNMENT, URBAN DEVELOPMEN To DEPARTMENT. VIKASA: SCUDHA, BANGALORE- 566001 .
2 BANGALORE BRI JHAT MAHANAGARA PALIKE, REP BY ITS COMMISSIONER, .
N.R. SQUARE, BANGALORE- 560002.
3 THE KARNATAKA STATE E LECTION ~~ COMMISSION, REP BY iTS COMMISSIONER, . CUNNINGHAM ROAD, . BANGALORE 560001 .. RESPONDENTS (By Sti: K Mi NATRAJA, AAG, SRI B. VEERAPPA, AGA, ADV. FOR R1) "THIS WP © FIL ED UNDER ARTICLE 226 AND 227 OF THE .. CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ~ NOTIFICATION DT.30.11. 09, VIDE ANN-A ISSUED BY THE R1, IN THE "FORTHCOMING ELECTIONS TO THE 198 WARDS OF BRUHAT Ye BANCALROE MAHANAGARA PALIKE.
Le WP No.35917 OF 2009(LB-ELE)} BETWEEN:
KODANDARAMA H S/O HANUMANTHAIAH AGED ABOUT 35 YEARS PRESIDENT, AMBEDKAR YUVA SENE R/O NO.231, BHARATHARATHANA INDIRA COLONY, AGRAHARA DASARAHALLI a BANGALORE 79 Ou, 0, PETYYIONER | (By Sri: RAVIVARMA KUMAR, SENIOR ADV.) AND :
] STATE OF KARNATAKA ae .
REP BY ITS PRINCIPAL SECRETARY _ a TO GOVERNMENT .
URBAN DEVELOPME NT DE PARTMEN? YT VIKASA SOUDHA: .
BANGALORE O41 2 BRUHAT. BANGALORE MAHANAG ARA PALI. E REP BY ITS CO OMMISSIONER..
N.R.SQUARE BANGAI ORE 569002.
3° THE: KARNATAKA STATE:
. ELECTION. COMMISSION
-REP BY ITS COMMISSIONER CUNNINGHAM ROAD BANGALORE 560001 . RESPONDENTS ~ (By Sri: KM NATARAJA, AGA, SRI B VEERAPPA, AGA FOR RI) THIS: WP FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED mo NOTIFICATION DT.30.11.09, VIDE ANN-A ISSUED BY THE RI, IN THE » . FORFHCOMING ELECTIONS TO THE 198 WARDS OF BRUHAT BANGALROE MAHANAGARA PALIKE.
eo WP No.35918 OF 2009(LB-ELE) BETWEEN:
M RAMESH AGED ABOUT 51 YEARS S/O MUNISWAMAIAH EX-PRESIDENT, YALAHANKA CMC R/O A-37, KHB COLONY PATTENAHALLI, YALAHANKA oy oe BANGALORE aan _ PETYI HONER .
(By Sri: RAVIVARMA KUMAR SENIOR ADV.) AND :1
STATE OF KARNATAK A me REP BY ITS PRINCIPAL SECRETARY TO GOVERNMENT ©. ° URBAN DEVE LOPMEN' r DEPARTMENT. " VIKASA SOUDHA™ :
BANGALORE OL.
BRUHAT BANGALORE} MAHANAGARA PALIKE REP BY ITS COMMISSIO} YER. --
N.R.SQUARE..
BANGAI ORE 560002.
THE: KARN ATAKA STATE ELECTION COMMISSION REP BY ITS COMMISSIONER ~ CUNNINGHAM ROAD BANGALORE 560051 .. RESPONDENTS (By Sri: K M NATRAJA, "AAG, SRI B VEERAPPA, AGA ADV. FOR R1) "THIS WP FILED UNDER ARTICLE 226 AND 227 OF THE . CONSTITUTICN OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DT.30.11.09, VIDE ANN-A ISSUED BY THE R1. IN THE ~., FORTHCOMING ELECTIONS TO THE 198 WARDS OF BRUHAT ". BANGALGRE MAHANAGARA PALIKE.
We WP No.35919 OF 2009(LB-ELE) BETWEEN:
VASEEGARAN S/O RAMASWAMY AGED ABOUT 40 YEARS NO.38, BEHIND VINAYAKA TAKIES DEVARA JEEVANA HALLI ec BANGALORE 45 8, PETITIONER ~~ (By Sri: RAVIVARMA KUMAR, SENIOR ADV.) AND:
] STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY TO GOVERNMENT ©. .
URBAN DEVELOPMENT DEPARTMENT . VIKASA SOUDIA- a BANGALORE Ol.
2 BANGALORE BRUHAT MAHANAGARA PALIKE:.
REP BY ITS < COMMISSIONER.
N.R.SQUAPE 7 BANGALORE.560002. |
3. THE KARNATAKA STATE ~ - ELECTIGN COMMISSION . REP BY IFS COMMISSIONER . CUNNINGHAM ROAD BANGALOR® 566601 ... RESPONDENTS _ (By Sri: K M NATARAJA, AAG, WITH SRI. B VEERAPPA, AGA FOR R1]) "THIS "WP FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DT.30.11.09, VIDE ANN-A ISSUED BY THE R1, IN THE _ FORTHCOMING ELECTIONS TO THE 198 WARDS OF BRUHAT _ BANGALROE MAHANAGARA PALIKE.
ee WP Nos.36138-36145/2009(LB-ELE) BETWEEN:
] Hy NAGARAJ AGED 44 YEARS, S/O LATE N MUNIRAMAIAH, R/O NO.40,. BUDAVIHAR ROAD, FRAZER TOWN, BANGALORE-560005 R SAMPATHRAJ AGED 39 YEARS S/O LATE C RAJEE, NO.5, MURGESH MUDLIAR. ROAD.
FRAZER TOWN, BANGALORE-560008 M SHANTKUMAR AGED 59 YEARS, _ S/O C MUNISWAMY R/O NO.86, DEVARA, JEEVANAHALLL, :SRINIVASANAGAR, WARD NO. a7 7
BANGALORE- 45 , .
HAMEED ULLA SHARIFF AGED 34 YEARS -
S/O SAMEEULLA SHARIFF OCC BUSINESS
-NO.31, OPP ANJENEYA TEMPLE, SRINIVASANAGAR, WARD NO.47, D J HALLI, . BANGALORE AB S ASLAM PASHA.
AGED 39 YEARS,
- S/O LATE'S IQBAL AHMED
-. NO.104, ROBERSON ROAD, "FRAZER TOWN "BANGALORE-560005 ~AFSALSM
-- AGED 29 YEARS S/O HASSINNAR HAJI
- R/O NO.1507, MUSTAFA COMPELX, OPP ANAD TEATER, DEVARAJEEVANAHALLLI, he 12 WARD NO.61 S K GARDEN, BANGALORE-45 7 MOHAMMED NASIR ANEES AGED 33 YEARS S/O LATE ABDUL RASHED R/O NO.KA-270, 2ND SATAGE, COFFEE BOARD COLONY, ANWAR LAYOUT, WARD NO.32 KUSHALNAGAR, BANGALORE-45 8 H A RAMANAND AGED 38 YEARS, S/O M ANJANEAPPA HENNUR MAIN ROAD.
KALAYAN NAGAR POST, WARD NO 24, BANGALORE -43 >... PETITIONERS (By Sri: SHIVAPRABHU S HIREMATH, &DV.). | 1 STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY TO GOVERNMENT ~~ URBAN DEVELOPMENT DEPART 'MENT, VIKASA SOUDHA., BANGALORE-569061. ~ 2 -BRUHAT BANGALORE ~~ MAHANAGARA PALIKE
-REP BY ITS COMMISSIONER NRSQUARE, .» BANGALORE: 4566002 3 > THE KARNATAKA STATE ELECTION COMMISSION _REP BY ITS COMMISSIONER . -CUMMHINGHAM ROAD, | BANGALORE: 560001 (By Sri: K M NATRAJ, AAG, WITH SRI B VEERAPPA, AGA, ADV, FOR R1) L--
.. RESPONDENTS THESE WPS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION, BANGALORE DTD 30.11.09 VIE ANNEX-A ISSUED BY THE R1 INTHE FORTHCOMING ELECTIONS TO THE 198 WARDS OF. BRUHAT BANGALORE MAHANAGARA PALIKE. .
WP No.36279/2009(LB-ELE) BETWEEN:
NANJUDAPPA AGED ABOUT 48 YRS S/O LATE VENKATAGIRIYAPPA R/0.30/31, NANJUDAPPA LAYOUT, SHANTHIVANA, SAHAKARANAGAR (P yo Mt BANGALORE-92 oo, PETITIONER (By Sri; RAVIVARMA KUMAR, SENIGR ADV. : . FOR IRISHED AHMED AND LEAHKRA.I, ADW.) AND :
1 STATE OF KARNATAZA a, oe REP BY FITS PRINCIPAL SECPE TARY TO GOVERNMENT, URBAN DEVEL APMENT DEPARTMENT, ViKASA. SoU DHA.
BANGALORE 560061 mo 2 BRUHAT BANGALORE.
_ MAHANAGARA PALIKE
- REP BY ILS. COMMISSIONER ~ NRSQUARE | © 'BANGALORE-560002
-.3 THE KARNATAKA STATE "ELECTION COMMISSION _ ¢ REP BY ITS.COMMISSIONER ">. CUNNINGHAM ROAD BANGALORE- 560001 ... RESPONDENTS "(By Sti: it M NATARAJA, AAG, WITH SR! B VEERAPPA, AGA FOR Rl) Le THIS WP FILED UNDER ARTICLE 226 AND 227 OF. THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DT.30.11.09, VIDE ANN-A ISSUED BY THE -Ri,.IN THES * FORTHCOMING ELECTIONS TO THE 198 WARDS OF BRUHAT: -- BANGALORE MAHANAGARA PALIKE. a 7 WP NO 36280 OF 2009(LB-ELE) BETWEEN K P SYED SHAMEER AGED ABOUT 33 YRS S/O.SYED BAKSHI K P R/O.NO.29, 34TH CROSS, a 9TH MAIN ROAD, YARAB NAGAR, BSK IIND STAGE BANGALORE-70, se. PETITIONER (By Sri. RAVIVARMA KUMAR.SR.COUNSEL > _ FOR SRLB.M.IRISHAD AHMED, ADV) Lo AND 1}, STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA BANGALORE .
~ BBMP REP. BY. ITS. COMMISSIONER NRSQUARE. 9 > BANGALORE =:
ho
3. THE KARNATAKA STATE ELECTION COMMISSION ~ oo REP BY ITS COMMISSIONER ~ CUNNINGHAM ROAD ~~. BAPNGALORE ... RESPONDENTS "(By Sri: K M NATARAJA, AAG, "WITH SRi B VEERAPPA, AGA FOR RI) Mee THIS WP FILED PRAYING TO QUASH THE IMPU IGNED NOTIFICATION DT.30.11.09, VIDE ANN-A ISSUED BY THE Rl,. IN. THE FORTHCOMING ELECTIONS TO THE 198 WARDS OF BRUHAT BANGALORE MAHANAGARA PALIKE. GRANT INTERIM ORDER TO STAY © TO OPERATION OF IMPUGNED NOTIFICATION BEARING CERTIORARI --
QUASHING THE IMPUGNED NOTIFICATION DT.30.11. 09, VIDE ANN-AL ISSUED BY THE R1, IN THE FORTHCOMING.-ELECTIONS TO: THE 198. WARDS OF BRUHAT BANGALORE MAHANAGARA PALIKE. | --
WP NO 36282 OF 2009(LB-ELE) BETWEEN DASAPPA D Age:61 S/O.LATE DASAPPA AGED ABOUT 61 YRS, STATE PRESIDENT, KARNATAKA DALIT ACTION COMMITTEE, R/OQ.NO.438;JANANI ° JANAKA NILAYA, 2ND MAIN, MARUTHI NAGARA_ MYSORE ROAD, BANGALORE- 260 ~ PETITIONER (By Sri. RAVIVARMA KU MAR SR. COUR ISEL FOR SRI.B.M. IRISHAD, AHM iED, ADV.) AND I, STATE OF KARNA TAKA .
REP BY- iTS PRINCIPAL SECRETARY _TO GOVERNMENT, URBAN DEVELOPMENT | DEPARTMENT, VIKASA SOUDHA BANGALORE. » BRUHAT BANGALORE MAHANAGARA PALIKE REP BY ITS COMMISSIONER . - NRSQUARE .~
- BANGALORE
a)
3... THE KARNATAKA STATE ELECTION COMMISSION .. REP-BY ITS COMMISSIONER _ CUNNINGHAM ROAD _ BANGALORE ... RESPONDENTS ey Sri: K M NATARAJA, AAG, WITH SRI B VEERAPPA, AGA FOR Rj) ho THIS WP FILED PRAYING TO QUASH THE IMPUGNED NOTIFICATION DT30.11.09, VIDE ANN-A ISSUED BY THE Rl, IN- THE FORTHCOMING ELECTIONS TO _ THE 198 WARDS OF _BRUHAT WP NO 36357 OF 2009(LB-ELE) BETWEEN
1. MR BETTE GOWDA Age:33 $/O CHIKKA HEMAIAH AGED ABOUT 33 YEARS, re HEMAGIRI NILAYA, SREERAMA MA NDIRA-. ROAD, KAVERIPURA KAMAKS SHI PALYA, BANGALORE-5600% 79. ee - PETITIONER (By Sri. K. CHANDRANATH, ARIGA, ADV) o :
!. CHIEF SECRETARY .
STATE OF KARNATAKA ~ VIDHANA SOUDHA DR.AMBEKDAR VEEDHI BANGALORE. 560001.
20% SECRETARY. .
URBAN DEVELOPMENT VIEASA SOUDHA..
DR. AMBEDKAR VEEDHI, BANGALORE-56000 1
3... ELECTION COMMISSIONER
-.. STATE OF KARNATAKA ~ CUBBON PARK, . BANGALORE-56000 1 RESPONDENTS a '(By Sri: K M NATARAJA, AAG, _ WITH SRI B VEERAPPA, AGA FOR R1) eo THIS WP FILED PRAYING TO QUASH THE GAZETTE NOTIFICATION DT.30.11.09, GAZETTED IN PART-IV-A NO.1121 OF SPECIAL GAZETTE VIDE ANN-C, I SSUED BY THE R2.DIRECT THE R2, TO CALL FOR OBJECTIONS AND TO HEAR BEFORE THE ISSUE OF RESERV. ATION OF SEATS FOR THE BBMP ELECTION.GRANT INTERIM ORDER TO.
STAY THE GAZETTED NOTIFICATON DT.30,11.09, GAZET1ED IN PART. IV-A NO.1121 OF SPECIAL GAZETTE VIDE ANN-C, THIS WRIT APPEAL AND WRIT PETITIONS ARE. COMING 'ON FOR. DICTATING ORDERS, THIS DAY GOPALA GOWLDA J, DE LIVERED THE FOLLOWING JUDGMENT _ The Writ Appeal and bateh of writ petitigins are taken up for hearing on merits at the stage of preliminary hearing with the consent of the learned counsel for. the parties, on the motion being ~ made ay 'the Teaimed counsel for the appellant / petitioners, keeping mn view the observations made by this Court in W.P.No. tee /06 dated 16.11.2009 on the basis.of statement made b sy the learned Advocate General that the | notification ; "wits regard to reservation to various "categories in tne" wards of the Bhruhath Bangalore
-Mahanagara Palike (hereinafter called as "BBMP" in short) | m shall be finalised and notified by 30.11.2009 and thereafter, the State Election Commission shail report by 7.12.2009.
he 18
2. Certain relevant facts are stated for the purpose of appreciating the rival legal contentions urged on behalf of. the parties with a view to answer the contentious points. that. -
would arise for our determination. one
3. The Writ Appellant has questioned the order of the -- learned Single Judge dated 29.10.2009 "passed in WP 28719/09 connected with: Ww. P. No. 2896 17/09 (LB-ELE) declining to quash the Government Order dated 21.7.2009 bearing No.UDD 139 MLR 2908, 'Bangalore, published in the Karnataka Special Gapete dated 21. 7.2009 specifying the number of seats - rese rved, for "8c, ST and Backward classes, women and further 1 fraping guidelines for the purpose of making resery ation to the aforesatd reserved categories for the Scheduled caste, and Scheduled Tribe in the BBMP wards 7 determined by the State Government, urging various grounds. The sanie will be adverted to in this Judgment with reference to the facts in the batch of writ petitions filed by the petitioners. \, 19
4. The petitioners in all these batch of writ petitions have challenged the legality and validity of the notification dated 30.11.2009, making reservations for various categories . in 198 wards for Election of BBM. Their grievance is that the ; :
State Government has overlooked _ constitutional : and statutory provisions under Article 248-7 of t the Constitution | and Sec.7(2) to (4) and proviso therete and Section. 21 sub- Sections (1) to (3) of the Kabnatalee } Municipal Corporations Act, 1976 (in short "the KMC Act).
5. The petitioners before this Court claim that some of them belong. to sc and sT and backward classes and also women category. The 'case: of "the petitioners is that, reservation made in' the oo notification to the reserved categories im the 'constituencies/ wards in the BBMP js an provided ander secs. 7 sub sections (2) to (4) and provisos thereunder of the KMC Act. The said provisions of the KMC Act is in conformity with the constitutional provision under Ny Art 243 T 'of the Constitution of India which reads as follows:
I 20 "Art. 243(T}(1): Seats shall be reserved for the Scheduled Castes and the Scheduled . ~. Tribes in every Municipality and the». number of seats so reserved shall bear. as. ee nearly as may be, the same proportior 'to os the total number of seats to be filed by direct Election in that Municipality as the population of the Scheduled Tribes in the Municipal area bears in the total population of that area and such seats :
may be allotted by rotation te. different ~~ constituencies in a Municipality." 8 (Emphasis made by the Court)
6. It is their farther case Mat under the provisions of KMC Act and under Article 243-T of Constitution of India, the Elections to the BBMP is required to be conducted by the State Election Commission after making reservation of seats by the State Government in favour of SC and ST and other backward 'clase categories and women. The Election was | conducted reserving various seats in favour of the Scheduled caste and Scheduled tribes and for other backward classes categories, during the year 2001, for 100 wards of erstwhile "Bangalore. Mahanagara Palike (BMP', in short). The a 7 petitioners further submit that the respondent-Government by a notification dated 16.1.2007, in exercise of its powers h--
21conferred by Sec.3 read with clause (a) and sub-section ee of Sec.4 of the KMC Act, included the areas specifi ed» Schedule-A the limits, which are specified in Scheditle "BR Sa called as BBMP. The said notification of ; the : "terrtoriat - jurisdiction of BBMP has been increased ; by "merging "the . seven city municipal councils, one: town municipal council . area and 110 urbanised villages. Pursuant to the notification dated 16.1.2007, notification dated 1 14.8.2007, modifying the guidelines with regard to wards and local authorities of BBMP was issued.
7. The election to the BBMP has now required to be conducted by the State. Blection Commission (hereinafter referred to as, "Blection. Commission') based on 2001 population censa us: depending on the reservation of seats to ~. be made: to the Scheduled caste and Scheduled Tribe as provided under Section 7 sub-section (2) of clauses {a) & (b) of the KMC Act.' "As per amended provision of Section 7(1) of _ KMC- Act 198 wards are determined comprising BBMP, the S details of which are stated in the writ petitions. The table ~ giving details of SC and ST population in the BBMP Area he 22 prepared as per 2001 census is produced at Annexure-B in the WP No.35885/09. .
8. It is the petitioners' case that on m7 2000 the Os reservation of seats to be made to the So, ST on. the basis of fo population in 23+2 Assembly constituencies within the jurisdiction of BBMP, which is contrary to the constitutional provision under Art. 243- T of Constitution | of India and statutory provisions under Sec. 7 sub 1b sett | 1 (2) and clauses
(a) & (b} of the AMC Act, as the said ud provisions of the Act provide that the seats, 'shall be reserved for the scheduled castes and schediled tribes in: pevery city Corporation. Further it is stated that. the "yeservation of seats to the aforesaid reserved categories is made by the State Government on the , basis | of SC & (ST population in the legislative assembly seginents 6 of BBMP, It is specifically contended that under the above, provisions of the KMC Act, the reservation of seats to _ the abo ve 'reserved categories should be on the basis of total " mo population of the SC & ST in the municipal area based on 9001 census. --
239. Further learned Senior counsel, Mr.Ravivarma Kumar has placed strong reliance upon Sec.7 sub section (2) clauses (a) & (b) and also sub sections (3) & (4) and provisos of the KMC Act and Sec.21(3) of the KMC. Act in support of his -
legai contention.
10. Relying on the above provisions he submits that the State Government has to determine the wards for the purpose of making reservation of seats . te the "various reserved categories as provided smder Sections 7 sub sections (2) to (4) & provisos r/w sub seton 210) clause (6 (c ) of the KMC Act but that has not been done by the. State Government by framing the rules as + required in law v by following the procedure contemplated under Sec, 421. of the KMC Act after previous publication of the notification should have made to frame the = rules to carry out the purposes of Secs.7 and 21 of the KMC 'Act. But the State Government has passed the Government "onder dated 21.7.09, which is an executive order traceable to _ Art.162. of the Constitution of India which is not legally ms permissible to determine the wards in the BBMP Area and _ provide guidelines for making reservation of seats to the SC & We 24 ST castes as the same should be made as per Rules to be framed by the State Government in exercise of its power 'aide Section 421 of the KMC Act. Therefore, the question of.
exercising executive power by the State Government under - Art.162 of the Constitution of India to determine the the waras and allot the reserved seats to the Scheduled caste "and - Schedule Tribes in the wards of BEMP is. not permissible in law, for the reason that the field of. law 's _eecupied under Sec.21(3) of the KMC Act and. the State Government is required to frame the rules for the above purpose. That has not been done - by it, "Therefore, the impugned Government order and the J eiudelines latd down in the notification dated 21.7.2009 is void. abinitio. in law. Hence, the reservation of seats in the wards of BBMP based on population of legislative Assembly seginents for the SC & ST reserved categories of the wards i in the BBMP is not legally correct, as the said Government 'order cannot be equated as the law as stated | mL under: Sec.21(1A) of the KMC Act regarding determination of wards in the BBMP Area and making reservation of seats to "the reserved categories and therefore, the same can be called h--
25in question in a court of law as the said Government Order and guidelines framed by the State Government is: not in conformity with Art.243-ZG of the Constitution of India and therefore there is no bar for this Court to exercise tis Judicial -
Review Power. It is further contended » by the learned Sr.Counsel Mr.Ravivarma Kumar and other leant ned counsel we that neither by the order / guidelines fra aimed in 1 the notification dated 21.7.2009 nor making reservation, to the various reserved categories vide notification dated 30.1 L. 2009 have got statutory force of law. ot herefore, the writ petitions filed by them seeking for the 'reliefs in 1 these batch of writ petitions are maintainable in law before tis Court, hence the petitioners have requested this Court § for issuance of the following reliefs:
- @ Issue of appropriate writ or direction in ~ the nature oj writ of certiorari to quash the impugned netification No.HUD 120 MLR 2009 datéd 30.11.2009 issued by the first respondent in the forthcoming Election to the I 98, wards of BBMP.
bp Prayed Jor grant of such other reliefs as
- this Court may deem fit to grant on the facts and circumstances of the case Including the order regarding costs.
he 26
11. In the writ appeal also, the very same legal contentions urged in the writ petitions are urged by. the learned counsel, Mr.V.Lakshminarayan, on behalf of the writ appellant. Therefore, there is no need for us 10 advert to the :
same once again to avoid repetition of the grounds. _
12. Learned Sr.Counsel also placed strong. reliance upon the constitutional provisions Sof See. 243- P clause(d), 243-D, 243-Q and 243- T and also certain "passages from the Judgment of the "Ape Court: reported. in. 1996(6) SCC 303 paragraphs 24, 25, 26, 27 and. 3 3. The same would be referred to in the reasoning portion of this judgment. while answering the contentious points that would be framed in these cases.
13. BS The ; learned Addl. Advocate --_ General.
Sri, K. M. Natar aj has 'sought to justify the Government Order dated 21. 7 72009 and the guidelines framed for the purpose of "making reservation of seats for the Scheduled caste and Scheduled Tribes as provided under Section 7 sub section (2) | clauses (a), (b) and reservation to the backward classes as ~. provided under sub section (3) & two provisos, explanation We 27 and sub-section (4) and proviso of the KMC Act regarding rotation of reservation read with Article 243T of the Constitution respectively by contending that the guidelines framed by the State Government in the Government Order _ have got statutory force in view of the fact that framing, of 'the :
Rules as provided under Section 1 16), for the rapes or sub section (1) & (2) of the Act is not: mandatory for it. It is further contended by him that it is not incumbent upon the State Government 'ommake Rules but it can frame guidelines for determination of. th © wards: and: make reservation for various resery yed: categories in conformity with Section 7 sub sections (2) to {4) in "conformity: with Article 243T of the constitution of India, The State Government in exercise of its executive power under Atticle 162 of the Constitution of India, keeping in view the time limit provided for conducting : Election to the BEMP under Article 243U of the Constitution Of India and in view of the fact that nearly four years have | \ already elapsed after the term of the elected Corporators of " a BMP had expired, and the State Government has appointed
- - . Administrator for the purpose of Administration of the BBMP.
WW 28 The state Government has passed Government Order dated 21.7.2009 and guidelines have been framed by it to. achieve the object of the constitutional mandate for the purpose on determination of the wards and make the reservation of seats, -
in the wards to the various reserved categories, which - in conformity with Article 243T of the constitution. p. Theretre, he submits that there is no Statutory violation and the action of the first respondent cannot be termed | as 2s void ab initio in law, as contended by the leaned Senior "counsel and other counsel on behalf of th the Appellants 2 and. petitioners. Further he would submit that U having regard to' the number of wards being 198, L/ 30 is reserved to. all the categories as required under sub-sectiors (2) and (a) of Section 7 of the KMC Act. The» guidelines are fratned in conformity with Karnataka Business 'Transaction Rules of 1977. The guidelines framed . in the Government Order dated 21.7.2009 are on the basis of Section 7 of the Act and keeping in view the total 198 wards. Phe reservation of seats to Scheduled caste and Scheduled "Tribe is nade on the basis of the guidelines and the same is "in conformity with Article 243T of the constitution.
WW Therefore, the notification issued in this regard is in the nature of law. Hence, the petitioners cannot question. the correctness of the same and seek quashing of the same in the. ; writ petitions and this court in view of the Article 24320, :
cannot go into the correctness of the: same and exercise its judicial review power either to qitash | the same or issue direction to the State Government and Election Commission, particularly having regard to the act that the constitutional mandate under Article 2430 of the Constitution as the term of the elected Corpoiators of the erstwhile BMP expired nearly about four yeare back. Affer the BBMP is constituted by the State Government adding the seven City Municipal Councils and one Town Munieipal Council comprising 110 villages to the BBMP, the conduct ot Election is very much over due and this court need not exercise its judicial review power, "particularly having regard to the statement made on behalf of the State Government by the learned Addl. Advocate General * and learned: counsel for State Election Commission who has given an undertaking to this court that notification would be We 30 issued on 7.12.2009 for the purpose of issuing the calendar of events for conducting the Election to the BBMP. =
14. Learned counsel Sri.K.N.Phanindra, on. behalf of Os State Election Commission has sought to justi the impugned notification in the writ appéal and the writ petitions and submitted that in view of the statement made by the learned Advocate Gene ral. "before this "Court in W.P.No, 15482/2006 {LB- BM). on '17. 9. 09, "the notification bearing No. RACHUA: 73: EUB; 2609 dated 7. 12.2009 was issued under Section 55. or ihe KMC Act and (Election) Rules 1979 to conduct Election to. i98 wards of BBMP. The Election will be held as per the schedule fixed in the above notification, According to the schedule mentioned therein, on 2.2010. the . BEMP Commissioner is required to issue and publish the noiification regarding calendar of events for conducting Election to BBMP. In support of his legal submissions he has placed reliance upon the following SS _ fader of the Apex Court reported in AIR 1952 SC 64: AIR 1967 SC 669; 1995 SUPP(2) SCC 305; AIR 1996 SC 1595: ILR 1999 Kar 2513; 2002 (2) SCC 7; 2006 (9) SCC 181; 2006 (8) he SCC 352 and the interim order dated 3.10.2005 in Civil Appeal No.4523/2005 and 1996(6) SCC 303 in support of the Proposition that since Election notification has been issued .
by the State Election Commission fixing the calender of.
events, this Court can not interfere with the same in exercise :
of its judicial review power under Articles 226 & 227 or 'the Constitution of India. F urther, he. has placed strong-t reliance on the Constitution Bench decision 2 of the Apex Court in the case reported in (2008)8 Sco 352 paragraphs 14, 19, 20, 21 and 28 and Article: 245. uU of the "Constitution of India in support of his: contention that, even if 'there are tregularities in the procedure adopted by the State Government in issuing the impugned notifications 'determining the total number of reserved seats. to various categories out of 198 wards or allotment of reser ved seats in the 198 wards of BBMP, this court need not interfere with the Election process in exercise of its s Judicial Review Power.
6 EBL 'Learned counsel on behalf of the State Election | Commission further submits that, having regard to the " Constitutional mandate as provided under Article 243-U 32 which provision fell for consideration before the Constitution Bench of the Apex Court, which, after examining the object and intentment of the above said provision and after referring :
to its earlier decisions in Special Reference -- 'No. / 2002 -
reported in (2006)8 SCC 362, held that if ence the notifeation.
is issued by the Election Commis sion, to notify the calender of events, the same shall not. be interrupte d by this. éourt in exercise of its judicial review 'power: Further he has placed strong reliance upon. the interim order paseed by the Apex Court in Civil Appeal No. 4523 /2008. which appeal arise from this court in the ca e of K arnatake State Election Commission V/s. H.C. Yateesh Kumer Re others | wherein, the Apex Court referred to another Constitution Bench decision in the case of Megharaj Kothari YW Ss. Delirnitation Commission & others (AIR 1967: sc | 669) where similar contentions regarding non- "providing of the guidelines by framing the Rules for the purpose of making reservation of seats in the Zilla Panchayat io and Taluk Panchayat Elections in the Karnataka State were raised. The Division Bench of this court had granted relief in favour of the petitioners therein but the Apex Court after we 33 referring to the Constitution Bench decision directed the State Government and Election Commission to proceed * with conducting of the Election to the Zilla Panchayats and Talis Panchayats. That order was sought to. be vacated: but the - same was rejected by the Apex Court, "which decision iss reported in the case of Karnataka State Election Comméssion oe V/s. H.C.Yateesh Kumar & others 2008)2 sce 181). in which the constitutional provisions of Artie les 243- E and 243-0 of the Constitution of India| are examined. "a 'Therefore, he submits that neitixer the, appeltant nor the petitioners are entitled to reliefs. 8s pra ayed. by them in the writ petitions.
Therefore, he = has prayed for dismissal of the same.
16. Learned counsel | Sri.Phanindra, also placed strong reliance upon, the Division Bench decision in the case a of Prof. B.K.Chandrashekar & others V/s. State of Karnataka "OLR 1999 Kar.2613) in which this Court has referred to the Apex Court decision in N.P.Ponnuswami V/s. The Returning = Officer, Namaktkal Constituency, Namakkal, Salem Dist. And _ others (AIR (39) 1952 SC 64) and the other constitutional os, provisions of Article 243-E(3){a) and provisions of Section 5(2), he 34 5(3) and 5(4) of Panchayatraj Act of 1983 and has laid down the law by holding that the Election process would commence not from the date of issuing either the notification ot the calendar of events but earlier to that. when steps ave been -
taken up by the State Election Commission and the State government for the purpose | of delimitation Or: 'the . constituencies and reservation which also_amount to starting of the Election process. Similarly, in. the instant case, prior to 21.7.2009, having regard to the act. that the term of BMP expired about four. years: ago and an. administrator was appointed after. 'BBMP. was" "incorporated by the State Government issuing tie notication the writ petition was filed and is pending before this court since 2007 seeking relief against the State Eiection Commission and the State Government for the purpose of conducting Election to the EMP 'under the, provision of KMC Act read with constitutional provisions. He has also placed reliance upon a the. submission made by the learned Addl. Advocate wo Government General that notifications dated 21.7.2009, both with regard to the guidelines framed for the purpose of We 35 making reservation of seats to the various reserved categories of 198 wards and allotment of reservation of seats made under the Government Order dated 30.1 1.2009 to the various . wards of BBMP is in the nature of law. The provision of Article ; - 243-ZG of the Constitution of India read with Section 1 218A :
of the KMC Act is attracted to the facts. ot the case and therefore, exercise of power by this: Court. under Articles 226 & 227 of Constitution of India 'is: a bar a and on this ground also he has prayed for dismissal of the writ ( appeal and the writ petitions.
17. With reference to tHe above rival legal contentions urged by the iearned Senior - counsel and other counsel, learned Ad: titional Advocate General and counsel for the State | Election Commission, the following contentious points Ps, would arise for ot our determination:
i) "Whether the State Government is required to frarme rules as provided under Section 21 sub ._ séction (3) of KMC Act to carry out the object of Section 21 sub section (1) clauses (b) & (c) and (2) read with Section 7 of the KMC Act, 1976 by Wye iii} 36 following the procedure as provided under Section 421 of the said Act?
Whether in the absence of Rules framed under Section 21(3) of the KMC Act for the _ Parpote of determination of wards. cand © for making | reservation of seats to the various categories in: the :
Municipal Corporation. Area | cand me king of reservation of Seats _ to" the various . reserved categories in 198. wards. of BEMP, the impugned notifications dated 217 09 & 30.11.09 respective! y are vitiated in Taw? _ Wheth: er this court: can interfere with the Election process. commenced in. exercise of its Judicial Review power, under Articles 226 & 227 of the Constitution ¢ ot Indiz?
7 'To what relief the parties are entitled to? And what we direction to be issued to the State Government in ~ these cases?
- Point Nos. 1 and 2 are inter-related and hence, they are : answered together by assigning the following reasons:
\we--37
18. For the purpose of answering the aforesaid points the provisions of Sections 7 and 21 of KMC Act are required to be extracted, which read thus:
'Section 7: Constitution of © the -- Corporation- (1)The Corporation shall consist of
(a) such number of elected Councillors not. being less than thirty and more than two hundred as --
the Government may by notification deternine;
(b} not more than five persons notninated by the Government from amongst the résidents of the city- me et (0 who are perscns havirig special knowledge and experience in. imuinicipal administration -- or matters relating to health; fown planning or education; er © me ( ~~ who are social workers;
(c} the members of the House of People and the members of the State Legislative Assembly _ Tépreseriting a part or whole of the city whose constituencies lie within the city and who are registered cs electors within the city:
(d) the members of the Council of State and State Legislative Council who are registered as » electors. within the city:
_ : (2) Seats shall be reserved in a Corporation. -
. ta) for the Scheduled Castes; and
--()--_ for the Scheduled Tribes:
Wwe 38 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 the Corporation as the population of the Scheduled Castes in the elty or of the... ~ Scheduled Tribes in the city bears to the. total _ population of the city. con Fs (3) Such number of seats which shall aso. ~ nearly as may be, one-third of the total number ----
of seats to be filled by direct Election in-a - Corporation shall be reserved for "persuns belonging to the Backward Classes.
Provided that out-of the seats reserved under this sub-section, eighiy ner 'cent' of the total number of such seats shall be reserved for the persons falling under category. "A" and the remaining, wwenty per cent of ihe seats shall be reserved for the persons failing under category "Br. ree . mo :
Provided further thet if no person falling under category ."A". "is available, the seats reserved for the category shall also be filled by the persons falling under category "B" and vice versa.
_. Explanation.- For the purpose of this sub- _ "section. and proviso to clause (b) of sub-section
-.(1-A) of Section 10, categories "A" and "B" shall mean categories "A" and "B" referred to in clause (1) of Section 2.
. (4) 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 to be filled by direct Election in a Corporation shall be reserved for women:
Iu 39 Provided that the seats reserved in sub- sections (2), (3) and (4) shall be allotted b Y . rotation to different wards in a city." .
Section 21. Determination of {wards}: ete.- . (1jFor purposes of Election of Councillors . Government shall, by noti ification, determine.
fa) the [wards], into which the city. shail, 'be divided and the extent of each | wards];
(b) the number of seats Jallottect to each ward {which shall be one}: mT {ce} the number of seats" reserved for the Scheduled Castes, the Scheduled . Tribes, [Backward Classes and 'Women| and the' 2. fwaird s/ in which such seats: shall be reserved. Oe {(1-A} No notification under Sub- section(1 } shall be called im tques atone. ir vary Court of law:;] (2)The ratio heitve ZEN the Tuumber of Councillors to be elected from each' ward] and the population of that lward] shail se far as practicable be he same fhroughout the city;
oy (3)The Staie Government may make rules for the S amended by the State Legislature.
| "purposes of sitb-sections(1) and (2)."
). : In conformity with Article 243-T of Constitution of India, the provisions of Sections 7 and 21 are suitably | both the above provisions of the KMC Act, along with Article 948-7, it is the statutory duty of the State Government to Me By a careful reading of 40 constitute the corporation which shall consist such number of elected councillors not less than 30 and further by way of an an amendment to Section 7 by Act No. 22/2009. the maximum number of councillors "200". is substituted in the -
place of figure "100". Sub-section (2) clauses (a) & o of Section 7 of KMC Act mandates. the 'State Government that seats shall be reserved for scheduled castes and 'scheduled tribes on the basis of same propoition to the total number of seats to be filled by the corporation as. s the population of the scheduled caste. and. scheduled tribes: im 'the city bears the total population of the city and 1 furthe er the other sub section (3} of Section 7 provides "that 1 /3ra of the total number of seats to be filled by direct Election in the corporation shall be reserved to- the persons belonging to the backward classes subject the Proviso in respect of persons falling under : category) and category(B ). Sub-section (4) and its proviso of the. sub-section 7 speak of 1/3 of seats being reserved for each category and the non-reserved seats to be filled by direct Election 'in the corporation being reserved for women. The ~ proviso to the said sub-section is very relevant in view of the hee 41 fact that reservation has been made by the State Government to reserved categories of Scheduled caste and Scheduled tribe on the basis of the legislative assembly segmerits as: per guideline No.5 in the notification dated 21.7.09. 'Section 21({ljand (2) speak about the purpose of conducting Election | of councillors of BBMP, the State Government, has to determine the wards and the number of seats to be reserved for the scheduled caste, scheduled tribes, backward classes and women. Sub-section (2) clauses (a}é (b} of Section 7 of KMC Act provides for making reservation of seats for the scheduled castes and scheduled tribes as their population in the city bears to the total population of city. Learned Senior Counsel, Mr.Ravivarma 'Kumar has placed strong reliance upon the definition of "City" as per Section 2 sub section (4) of the KMC Act, which reads thus:
24) "Cay" means any local area Specified as a larger urban area and which is deemed to be a city under _ Section 3. subject to any extension, »_ contraction or alteration of the limits of _ such area that may be made under this Act."
tue 42
20. Sub-section (3) of Section 21 of the KMC Act states that State Government may make rules for the purpoee of sub-section (1) and (2) of the above section for the purpose . of determining the wards and allotment. of number of seats _ reserved for the reserved categories as prov iad under clas 1ses a
(b) & (c) of Sub section (1) of Section 21 of the KMC Act. In the instant case, undisputedly, the ul es-are "not framed by the State Government as required in. tase. | in the place of rules, the State Government for "the purpose of determination of wards and allotment. of numbe T of Seats reserved for the various resery ved. categories b by issuing 'the notification dated 30.11.2009 on the basis of 'the. guidelines framed in the Government Order dated 2h. 7. 2009. Sub-section (3) of Section 2) of the KMC Act hias to be construed as mandatory though learned Addi. _ Advocate General and the learned counsel tor State Blection Commission Sri.Phanindra have coptended that in view of the phrase 'May' used in the said | -- sub- séc 'tion, 'it is not mandatory on the part of the State
-- Government to frame the rules for the purpose of Sub-
mS "sections (1) and (2) of Section 21 of KMC Act. In the place of he 43 rules, the aforesaid impugned Government Order has been passed, which are traceable to Article 162 of the Constitution of India. This contention is strongly objected by tie Ten contending that when the field with regard "euch :
of ward and making reservation of seats is vecupied by law for which the rules has to be framed as provided under the above sub section, that casinot ; be replaced by any an executive order of the State Government which principle of law is well established and further in view of the decision in the case of Babu Verghose &, others Vv, Is s. Bar Council of Keral (AIR1L999 sc 1281 } where the Apex: Court after referring to its earlier decision and chancellors decision in the case of Taylor V/s. Taylor: which was followed by Lord Roche in Nazir Ahmad V/s s. King Emperor, the proposition of law has been laid down that "where a parva? is given to do a certain thing in a certain wey, the thing must be done in that way or not at all." It is S necessary for us to extract paragraphs 31 and 32 from the said decision in support of the said legal proposition of law
- ms, . ° aid down by the Apex Court which reads thus:
he "SI.It is the basic principle of law long settled that if the manner of going a particular *. act is prescribed under any Statute, the act. > must be done in that manner or not at.all ~ -- The original of this rule is traceable ia the" decision in Taylor v. Taylor,(1875) 1 Ch dD 426 . which was followed by Lord. Roche in Nazir ae Ahmad V. King Emperor, 62 Ind App: 372: AIR. 1936 PC 253 who stated as under: ~ so "Where a power Is giveri to-do a ce -rtain : thing in a certain way, the thing must be done in that way or not at all."
32.This rule: has'. since. been approved by this court in Ras Shiv Bahadur Singh V.State of Vindhya Prade esh, 1954-SCR 1098:
AIR 1954 $SC322 and again in Deep Chand V. State of Rei gasthan (1962)1 SCR 662: AIR 1961 SC 152 The sé cases were considered by a Three ; Jude Bench of this Court in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 : 41.964) I. SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again hpheld: The rule has since been applied. te the- exercise of jurisdiction by Courts and has also been recognised as a _ salutary principle of administrative law."
: Qh . 'In view of the aforesaid Jaw laid down by the Apex Court, having regard to the statutory provision of Section 2103) of KMC Act, which states that the State Government may male rules for the purposes of Sub-sections (1) and (2) _ shall be construed as "shall" and it is mandatory and Section MS 42 iL ) which states that the Government may, after previous L 45 publication, by notification make rules to carry out the purposes of this Act has also to be complied with. Provisions of Section 21 sub section {1) clauses (a), (b) & {ce} ) regarainis determination of wards and making reservation of | seats: by, -
the State Government for various reserved - categirige is is the | statutory provision of KMC Act and the said proviston has been suitably amended to achieve the constitutional mandate of the Constitutional provision under / Article 243-T of Constitution of India regarding reservation, Further Article 243ZG of Constitution of India . speaks of law relating to the delimitation cf constituencies and { allotment of seats to such constituencies, made or purporting to be made under Article 2437, the State. legislature has therefore thought it fit to provide the: said provision of sub section (3) of Section 21 of KMC. Act te see : tha tf ior the purpose of sub-Sections (1) and * (2). of the . above provisions both regarding determination of wards _and resevvation of seats for various categories in the wards. of the BBMP there must be uniform guidelines be
-- provided by the State Government by way of framing rules by "following the procedure contemplated under Section 421 of h-
46the KMC Act to carry out the purpose of above provisions of the Act. Therefore, it is also necessary to ensure that there is consistency and uniformity in the entire State of Karnataka to carry out the purpose of the constitutional mandate of Article - 2437 with regard to law regarding determination of wards and ; reservation of seats. The provisiotr. of Section 21 (1) and (2) deals with regard to determination of wards and reservation of seats to be allotted by the State Governinent as prescribed in the rules, therefore it has frame the rules in exercise of rule making power by the State Government under Section 421 of KMC Act. The law relating. to 'delimitation of ward and constituencies cannot be questioned by a party in view of constitutional provisions of Article 243 ZG. Therefore, sub- section (3) of Section 21 of the KMC Act must be held as mandatory on the part of the state government to frame the . rules for the purposes of sub-sections (1) and (2) both "regarding determination of wards and making reservation of seats to various reserved categories by providing suitable guidelines in the Rules to achieve the constitutional mandate
- - . * under Article 243T(1) of the Constitution of India.
h~ 47
22. Further, the argument advanced by the learned Addl. Advocate General and the learned counsel for. the State 7 Election Commission that sub-section (3) is not mandatory _ but is directory in view of use of word * "May" in-the above sub :
section cannot be accepted by this Court for one mare rentoxt, | as the state legislative Assembly in- exercise of is legislative wisdom for the purposes of carrying Or It 'the purposes of Section 21(1) and (2) of the KMC Act thought fit io frame rules which will be uniform Serough out the State of Karnataka. In this view of the matter, . it cannot be said that it is not necessary for 'the Site Govertiment to frame rules and in its place, it can exercise its oeesiitve power under Article 162 of Constitution of India and pa ss the Government Order framing the. guidelines as" "that would amount to nullifying sub- an Section @) of § Section 21 of the KMC Act and further exercise of its executive power under Article 162 of Constitution of India, read with the provision of the Karnataka Business _ Transaction Rules of 1977 is by the political executive of that : oo department, whereas rules to be framed for the purpose of . Sub-section (1) and (2) of Section 21 which statutory power is h--48
delegated to the State Government, Rules are subordinate legislation for which the procedure as provided under Section 421 of the KMC Act must be strictly followed by the state Government . Section 421 provides for a-definite procedure to -
make the rules to carry out the purpose of the Act viz. there ; must be previous publication of the draft Rules as the same are required to be framed after the KMC Act has come into force. Sub-sections (5) and (6) reaa thus: . 7 :
(5) In making any rule; the Government may provide. that a breach thereof shall be punishable with fine which inay extend to one hundred rupees..."
(6) Every rile made under this section or any other. provisions of this Act shall be laid as soor as my be after it is made before each House of the State Legislature while it is in session for a total period of thirty days . Which may be comprised in one session or in two or. more successive sessions and if before the expiry of the session immediately following. the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall from the date on which the modification or annulment is notified by the Government in the Official Gazette have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be he 49 without prejudice to the validity of anything | previously done under that rule." .
23. Sub-Section {5} of section 421 of the KMO. Act states that in making any rule the government may provide - that a breach shall be punishable whica m ay extend Rs. 100/ ~ The said sub-section gives an indication that breach of vules oe by a person is punishable. Therefore Section 421. has to be strictly adhered to by the State Government Any breach thereof would be a staintory offence for which the concerned person will be.- hte for 'punishment. - Apart from the aforesaid reasons, "making ofr rules for the purpose sub- sections ); and (2) ofS Section 21 of KMC Act is not in relation to one City Corporation or Bruhat Bangalore Mahanagar Palike of Bangalore "Sections 7 and 21 of the KMC Act applies 0 al the City Corporations constituted under the : - provisions: of the KMC Act in the entire Karnataka State. In ~ the de termination of wards and making reservation of various io 'reserved categories, there must be uniformity in the entire Carnataka State. The State Government in respect of each "sone of the City Corporation or Mahanagara Palike cannot go he on passing executive orders in exercise of executive power under Article 162 of Constitution of India particularly when the State Legislature provides a provision under s sub- Section (3) of Section 21 of the KMC Act for making rules for the - purpose of giving effect to the statutory provisions of Section 21 sub sections (1)&(2) of KMC Act. Therefore, the arguments a advanced by the learned Senior Counsel and 'other learned counsel on behalf of the appellant and the: writ petitioners is well founded, as the same is based « on. "the aforesaid statutory provisions of the. KMC Ihe and therefore, "the word "may" used in the said sub- section 3) has io ve' construed as "shail". Therefore, it is the sti statiniory duty upon the State Government to make the rules for the purpose of carrying out the sub- sections (1) and 2) of Section 21 of the KMC Act, by strictly adhering to the Provisions of Section 421 of the KMC Act and . there cannot be any adhocism in relation to these matters as "the object and purpose of the statutory provision is to see that "there™ must be determination of the wards and reservation of seats to various categories in terms of the KMC "Act. : Therefore, there has to be uniformity through out the he 5] State in respect of achieving this laudable object of determining wards and making reservations to | various reserved categories.
24. We have also examined the legal "submissions of. the learned Additional Advocate General an "behalf of the State :
Government with regard to the legality of the Government Order dated 21.7.09 in framing the guidelines for the purpose of making reservation of seats to 'the scheduled caste and schedule tribe in the: BRMP Area "along with the relevant Government record d which is 1 made available for our perusal which is very -caretully examined by by us. We have noticed the various notes that "Sep put up by the officers of the First respondent: for approval of the political executive for determination < of wards and reservation of seats for the SC & ST castes oa draft guidelines are available in the notes, without ¢ the same | the Chief Minister of the State, who is hoiding the _ portfolio of Bangalore City at Note 69 has oe approved the Government Order dated 21.7.09. In the record
- os there i is a separate typed draft guidelines, which is prepared ~ after approval was given by the Chief Minister, the same is \ mentioned in the Bracketed portion in the Note No.68, which was put up prior to the draft guidelines being prepared... This important factual aspect would clearly show that the -- . guidelines being placed for his Ce T eon of seats for the SC & ST castes ini thee BBMP nas mechanically O approved by putting his signature' to. Note , No.69 in the original file. For this aforesaid valid reasons the notification dated 21.7.09 is liable to be quashed. "since we have held that the notification dated 21. 7. O9 is: liable to be quashed and based on this notif cation and following the guidelines framed therein the reservation of seats in the BBMP made by the State Government is also bat in law. Hence the notification dated 30.11.09 is also 'Hable to be quashed. Therefore, we answered the poitits Nos.(i) and fii) against the Stage : Government and in favour of the Appellant and petitioners.
: 7 95, 7 Point Nos. (iii) and (iv) will be answered together.
-Poitit Nos. (i) and (ii) are answered by us in favour of the oes 7 appellant and petitioners. We have to give certain directions os 'with regard to making of reservation of seats to various h--53
reserved categories in the 198 wards of BBMP which will be indicated in the operative portion of this judgment while answering point No.(iv) in favour of the petonérs. | sae reservation of seats of various categories. -in "the wards, of .
BBMP on the basis of the Constitution Bench judgments of 7 Supreme Court on which strong reliance is rightly piaced by Sri. Phanindra. However, we do not 'want to interfere with the process of Election already cominenced by issuance of the notification dated z, 7.12. 2008 by the State Election Commission. for. the following reasons - assigned by us. No doubt, in the fe nijaet Ob hearing these writ petitions and writ appeal the notification. has been issued. Keeping in view Article 243 3U of Constittition of India, which has been referred to by the Apex Court in the above referred judgment of the | Constitution Bench and other judgments upon which, learned ; courisel for the State Election Commission and learned "Additional" Advocate General on behalf of the State Government have placed reliance, we answer Issue No. (iii) in ~ favour of the State and State Election Commission by he assigning the following reasons. For this purpose, it is necessary for us to extract Article 243U (1) & (3) and clauses
(a) & (b) of Constitution of India, which reads thus: ms J Municipality, unless sooner dissolved under-any law for --
the time being in force, shall continue for five. ~ years from the date appointed, for iis first meeting and no longer: me .
"Art.243U(1) Every (2p (3) An election to constitute a "Municipality shall be completed, - Be fa} before * che expiry of its dura tion spectfied in Clause. fi). .
(b) before the expiretion of a period of six moriths j3 rom the date of its dissolution.
26. Having regard io the undisputed fact that the term of office | ot the elected counsellors of BMP has expired on 23, LI. 2008. ; The BBMP was constituted by the State Government: on 1 61.2007 by issuing notification, for the last
- more than three and half years, election to the BBMP has not . been. ricid by the respondents. The matters were pending before this court seeking issuance of a writ of mandamus to respondents. The said W.P.No.15482/2006, was filed by the : ~ public interested person viz., Sri.P.R.Ramesh. That writ We 55 petition was disposed of by this Court. vide, order dated 2.7.2008 along with the other connected writ petitions, after referring to the Constitution Bench decision, in the case of Kishansing Tomar V/s. Municipal Corporation 'of the City oF Ahmedabad & others (2006 AIR SCW 6044), with: reference to.
para 13, 14, 18 and 20 which read thus: | "13. So, in any case, the duration of the Municipality is fixed as five years from the date of its first meeting arid no longer. It is incumbent upon the Election Cemmission and other authorities 'to carry out the-mandate of the Constitution and to see that a new Municipality is constituted in time and Elections tothe Municipality are conducted before the. expiry of its duration of five years as specified in Clause {1) of Article 243-U. "14. The 'counsel for the respondents contended that due to multifarious reasons, the State Election Commission may not be in _ a position to conduct the Elections in time and "under such circumstances the provisions of _ Article 245-U could not be complied with stricto sensu.
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18. From the opinion thus expressed by this Court, it is clear that the State Election Commission shall not put forward any excuse h--
based on unreasonable grounds that the Election could not be completed in time. The . Election Commission shall try to complete the... Election before the expiration of the duration. of five years' period as stipulated in Clause." » (5). Any | revision of clecioral rolls shall be out within a reasonable ine the Blection i has to be conducted on the basis .of the then existing electoral rolls. In ether words, the . ~ Election Commission shail complete. the « Election before the expiration of the duration of five years' period as_siipulated in. Clause (5) and not yield.to situations that may be created by vested inter2sis .to.. postpone Elections from being held within the stipulated time.
JY, POOPOAAK., . 20. it is iS irue that there may be certain man- meade calam sities, such as rioting or breekdow of tau. and order, or natural calamities which coulsé distract the authorities from. holding Elections to the Municipality, but they are exceptional circumstances and under mo circumstance the Election Commission would. be justified in delaying the process of os _ Election after consulting the State Govt. and . other authorities. But that should be an ~ exceptional circumstance and shall not be a os regular feature to extend the duration of the Municipality. Going by the provisions contained in article 243-U, it is clear that the
- period of five years fixed thereunder to "constitute the Municipality is mandatory in nature and has to be followed in all respects.
It is only when the Municipality is dissolved for any other reason and the remainder of the period for which the dissolved Municipality he would have continued is less than six months, it shall not be necessary to hold any Elections for constituting the Municipality for... such period." se
27. In another Constitution Bench judgment of . Supreme Court reported in AIR SCW 2002 3C 4492 rendered on a Special Reference pertaining to conduct of lection, while ; | answering the reference at para 80, it is held as under:-
" 60. However, we are of the view that the employment of words "onan expiration" occurring in Sections 14 and 15 of the. Representation of the People Act, 1951.vespectivély shou) that Election Commission is. required to take steps for holding election immediately on expiration of the term of the Assembly: or. its. dissolution, although no period has beer provided.for. Yet there is another indication' in Sections. i4 and 15 of the Representation of the Peopie Act that the election process can be set. in' motion by issuing of notification prier to the expiry of six months of the ~~ normel term of the-House of People or Legislative 7 Assembiy. 2ROOXIOOXKXXKK The aforesaid provisions
- do indicate. that.on the prematured dissolution of Legislative. Assembly, the Election Commission is required to initiate immediate steps for holding _ election for constituting Legislative Assembly on
- the first occasion and in any case within six _ .menths from the date of premature dissolution of "the Legislative Assembly."
28. In the instant case, time was extended by this ws, Court upto 10.11.2008, i.e., four months time was granted for h-
38conducting Election with a further observation that there shail not be any further extension of time on any account. Thereafter, on the basis of promulgation of ordinance by His of the KMC Act was amended by Act No.22 /09. increasing the maximum number of councillors in city corporation to 200 from 150. One more extension 'of time was granted by this Court at the request of State Government extended on 31.3.2009 for a period of two months froma June 2009. In view of the aforesaid undispuied. facts and keeping in view the mandate of Article 242 regarding. the time schedule and before expiry, of terin' of 'elected councellors to the City Corporation, election should be held by the respondents and other related. constitutional provisions in the judgment of Kishansing 'Tomar V/s. Municipal Corporation, Ahmedabad, it would be necessary for us to extract certain passages from the followirig 'paragraphs No.13, 14, 16 and 17, wherein i ~ paragraphs 79 from Special Reference No.1/2002 is " : 7 extracted hereunder: --
"13. The counsel for the respondents contended that due to multifarious reasons, ° the State Election Commission may not be in'. a position to conduct the Elections in time. and | under such circumstances the provisioins Of . Article 243-U could not be complied. with, stricto sensu. --
14, A similar question came "ip before os the Constitution Bench of this Court in Special -- Reference No.1 of 20C2 with reference to ihe © Gujarat Assemble Elections matter, 'The Legislative Assembly of the State of Gujazat was dissolved before the' expiration of its normal duration: © Article "174 Il} of the Constitution provides that six months shall not intervene beiween the. last sitting of the Legislative' Assembly in one session and the date appointed Jor. its. first. sitting in the next session and the Eiectisn Commission had also. noted that - the mandate of Article 174 would require. that: the Assembly should meet every six months even after dissolution of the House and. that the Ejection Commission had all aiong been. consistent that normally a Legislative Assembly should meet at least every six months as contemplated by Article ~ 174 even where it has been dissolved. As the last sitting of the Legislative Assembly of the State of Gujarat was held on 3.4.2002, the Election. Commission, by its order dated ~ 1€.8.2002, had not recommended any date Jer holding general Election for constituting a new Legislative Assembly for the State of "Gujarat and observed that the Commission will consider Jraming a suitable schedule for the general Election to the State Assembly in November-December, 2002 and therefore the mandate of Article 174(1) of the Constitution of India to constitute a new Legislative he Assembly cannot be carried out. The Reference, thus, came up before this Court.
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16. Concurring with the fore "egoing . opinion Pasayat, J. in paragraph 151,. stated » as follows: "The impossibility of holding the Election is not a factor against the Election. Commission. The maxim of law impotentia _ excusat legem is intimately connecied | "wth | another maxim of law lex no cogit ad impossibilia. Impotentia excusat legem is that when there isa necessary » or invincible disability to perform the: mandaiary part of the law that impoientia excuses. .The law does not compel-one: to co that which one cannot possibly. perform. ° "Where the law created .a duty or charge. and the party is disabled. io perform: (ft, without any default in him." Therefore, when. it appears that the performance of the formalities prescribed by a statute has. been rendered impossible by circumstances. over. which the persons interested had no.control, like an act of God, the circumstances will be taken us a valid excuse. Where. the act of God prevents the _ comptiance which the words of a statute, the statutory. provision ts not denuded of its . inandatery character because of supervening ~ Unpessibility caused by the act of God. (See | -, Brocm's Legal Maxims, 10" ED., at pp 1962- 63 .and Craies on Statue Law, 6% Edn., p.
268.) These aspects were highlighted by this Court in Special Reference No.1 of 1974. "Situations may be created by interested persons to see that Elections do not take place and the caretaker Government continues office. This certainly would be against the scheme of the Constitution and ea
29. 61 the basic structure to that extent shall be corroded." a 17, From the opinion thus expressed 'by this Court, it is clear that the State ann oo Election could not be completed in time. ihe - Election Commission shall try to complete the. Election before the exptratiori. oj the duration of five years' period as 'stipulated. in Clause © (5). Any revision of electoral rolis shall pb e carried out in time and if it cannot be -earried out within a reasonable time, the Election has to be conducted on the basis - of the then existing electoral rolls. In other. words, the Election Commission. shall complete the Election before the expiration cf the duration of five years' "period: as: stipulated in Clause (5) and net yield to situations that may be created. byvested interests to postpone Election: from: being held within the stipulated time."
Res same bench of the supreme court has rightly placed reliance ol "Anugraha Narain Singh & another V/s. B 'State of V. Pp & olRers {1996)6 SCC 303) and the relevant
- paragrapli'is extracted below:
: "I4. There are several reasons why these arguments of the writ petitioners should not have been upheld. The High Court overlooked the fact that no municipal Election had been held in the State for nearly ten years and the dates of the Elections were Nhe 62 Jixed under the direction given by the High. Court in another case. Importance of holding -
Elections at regular intervals for panchayats, ~ municipal bodies or legislatures cannot be. . overemphasised. [f holding of Elections is."
allowed to be stalled on the complaint of a.
few individuals, then grave injustice will be. ~ done to crores of other voters who have a.
right to elect their representatives to the local _ bodies. As a result of the order of thé High :
Court, Elections that were.going to be held to the local bodies after a long lapse of nearly fen years were postponed indefinitely. it was pointed out by this Court in the case of Lakshmi Charan Sen. 9, AEM. . Hassan Uzzaman, that : (SCC p. 703, para'2! "the fact that certein-claims and objections. are not finaliu disposed of. even assuming that they are filed in accordance with law, caiimot arrest the process of Election te the legislature. The Election has to be held on the basis of the electoral roll which is in force. on. the 'iast date for making nominations"; --
~. 30. "Learned Addl. Advocate General has also placed strong rehance on paragraph 29 from the case of Election a Commission of Indie through Secretary V/s. Ashok Kumar and . others (2000 SC 2979 which reads thus:
"29. Section 100 of the Representation of the People Act, 1951 needs to be read with Article 329{(b), the former being a product of the later. The sweep of Section 100 spelling out the legislative intent would assist us tt h-63
determining the span of Article 329{b) through the fact remains that any legislative ».
enactment cannot curtail or override dhe.
operation of a provision contained in. ihe - -
Constitution. Section 100 is the. only BS provision within the scope of which an attack on the validity of the Election must falt: S0.aQS ~~ to be a ground available for avoiding an Election and depriving . the: successful ~ candidate of his victory at -the polls. The Constitution Bench in Mohinder Singh Gill's"
case (AIR 1978 SC 851}.{vide para 53) asks us to read Section 100- widely as "covering the whole basket of grievances of the candidates". Sui)-ciau:se div) of ciause(d) of sub-section (1) of Sectton 1CO is a "residual catch-all clause". Whenever thére has been non- -compliance with: the provisions of the Constitutior: or of the. Representation of the People Act, 1951 or of any rules or orders made theretinder ifnot specifically covered by any other preceding clause or sub-clause of the Section it. skall.be. covered by sub-clause of the Section it shall be covered by sub- clause(iv). The résult of the Election insofar as it concerns a returned candidate shall be "set aside for any such non-compliance as
- --_ above said subject tosuch non-compliance sO satisfying the reuirement of the result of oO the Election having been shown to have been _ materially affected insofar as a_ returned "candidate is concerned. The conclusions which inevitably follow are: in the field of _ Election Jurisprudence, ignore such things as
-do not materially affect the result of the Election unless the requirement of satisfying the test of material effect has been dispensed with bythe law; even if the law has been breached and such breach satisfies the test of material effect on the result of the Election of h-
the returned candidate yet postpone the adjudication of such dispute oN
31. In view of the aforesaid Constitution Bench decisions and also keeping in view Article: 2430 cand the undisputed fact that Election is over dite xe) ) the BBMP. 'atier it is constituted in the year 2006. 'the term of 'BMP expired 2 about three and a half years back. this court cannot interfere with the Election process aiready commenced pursuant to the order of this court in the above writ petition, However, having answered point Nos. ti) and (i) in favour of the appellant and. the. petitioners, "point No.{iii} has to be answered in"favour of the respondents but answer to point No.{iv) must be in favour of the writ petitioners by giving suitable direction | to the State Government by us by following the devision of the Apex Court in the case of Anugrah Narain
- "Singh at paragraph 31 wherein the Apex Court has made ~ observation this:
. "31. On behalf of the respondents, it has been contended that the Court is not entirely without jurisdiction to intervene when it finds that provisions of the Constitution are being flouted in holding the Election. In such a Situation, the Court has jurisdiction and, We 66 rolls. It made a survey of the population on its own and the electoral rolls were drawn up ..
for various wards and delimitation of the. . constituencies (wards) and the allotment of .
the seats to such constituencies were.done.. ~.
not on the basis of the census figures of 1991 such _a_ situation, it was appropriate for ine © petitioner to invoke the writ jurisdiction anad-
compel the State authorities to act. in accordance with the. mandate -of ~the Constitution. In doing this, the Court was not declaring any law te. be inwelid but _was compelling the State to aci in'accardance with the law and, the Constitution."
- (Emphasis is made by this Court)
32. in such situation, it is appropriate to invoke the writ jurisdiction of this Court and compel the State authorities io act ; in accordance with the mandate of the Constitution and comply with the statutory provisions of the oe, KMC Act. In doing so this court is not declaring any law to be . invalid, but is compelling the State to act in accordance with : 'the provisions of Constitution of India and law. The aforesaid favour of backward classes of citizens.
. observations were made in the context of challenge to Section _ 7 'of the to the U.P.Act pertaining to reservation of seats in h---
The aforesaid 67 observations of the Apex Court in the above referred case is aptly applicable to the facts of the case for the reason that we have already held point Nos. 1 and 2 against the State Government for non-compliance of the statutory provisions of :
Section 21(3) of the KMC Act in not making the rule for the purpose of determination of the wards 'and reservation of -- seats to various reserved categories as provided under Section 7 sub sections (2) to (4) and for "the purposes of Section 21(1)(2). For the reasons stated: supra, we also not find the impugned Government Or ders. dated 21.5 7.09 and 30.11.2009 can be construed as. "rales. bat are only guidelines for the purpose of carrying out b sub sections (1) and (2) of Section 21 of the KMC Act; regar ding the determination of the wards and resérvation of seats to various reserved categories.
33. In the instant case, reservation of seats made by the: State Government in the wards of BBMP in the A' Gov ernment Order dated 30.11. 2009, following the guidelines _ Nos 5. and 6 framed in the Government Order dated os 217 2009, which is challenged in the writ appeal No.4331/09 " are not referable to municipal area as provided under Article 243T read with Sections 21(1)(2) read with sub sections (2) clauses (a) & (b) to Section 7, which is exactly contrary to » the provision of Article 243T of Constitution of India and Section = 7 sub section (3)& (4) and proviso of the KMC Act 18 also not - complied with the State Government. Ther efore, - the "direction. to the State Government as indicated later tex is. necessitated { in these case by answering the point No. ii in favour of the appellant and petitioners. The said directions issued by us can be complied with by the State 'Governinent despite the notification dated. T. 43 209 issued by, the State Election Commission. regard! ing the calendar of events for conducting Election which ia required to be notified by the Commissioner of BBMP as 12.2010 as we have already held that we do not wishi _to interfere with the "lection process. But on perusal of the orignat file in, relation to issuance of the Government : Order dated 21.7.2009, we find that guideline Nos.5 and 6 of "the said order 'are contrary to the relevant provisions of the Constitution and statutory provisions of the KMC Act.
F urther as could be seen from the above Government order the. above Suidelines are framed on the basis of guidelines of he 69 the year 2007 and further it is stated rotation of reservation to the various categories is not possible, when the same was pointed to the learned Addl. Government: Advocate 7 Sri.K.M.Nataraj. A memo is filed by the learned Addl. Advocate General after taking instructions fromthe Secretary of the first respondent Mr. Ravindra who is present before the court which reads thus:
* The Respondents: State hucnbly s submit that if paras 5 and 6 of the guidelines dated 21.7.2009 issued by ihe State Government are held to be illegal, Ue. State Government may kindly be granted two weeks' time to issue fresh reservation list in terms of the orders passed by this Hon'ble Court in. the above. cases, in the interest of Justice," eS
34. In view ef the said memo filed by the State, the Election process can goon as per the notification issued by the State , Election.Commission. We, however direct the first respondent to. re-do the reservation of seats for reserved ». categories of the Scheduled caste and Scheduled Tribes in * conformity with Article 2437 of the Constitution of India and Section 7 sub Section (2) clauses (a) & (b) and provisos of the "said section in respect of 198 constituencies of BBMP, on the he 70 basis of the statistics regarding the population of Scheduled caste and Scheduled Tribe available with the State Government on the basis of the population census of 2001 which is also made available by the petitioners at Annexure-B -
in W.P.No.35885/09, by strictly adhering to 'the said provisions of the Constitution of india and KMC Act including a the rotation of seats regarding reservation of various categories. 3 ~
35. For the reasons" stated supra, we are not interfering with either the determination of the wards or the notification dated 7, 12.09 of State Election Commission in scheduling the calendar of evens for conduct of Election to the BBMP. But the aforesaid direction shall be complied with by the first respondent 'and submit a report of compliance within two weeks to facilitate the State Election Commission and the - Commissioner of BBMP to go ahead with the : elections of BRMP as per the decision rendered by this court io "in W.P.No.15482/ O06 and connected matters strictly adhering io the schedule mentioned in the notification dated 7.12.09 : issued by the second respondent-State Election Commission.
he 7]
36. For the reasons stated supra, we pass the following order:
(i) Writ Appeal No.4331/2009 partly succeeds. Paragraph:
(ii) Nos.5 and 6 in the Government Order dated 21 7.2009 -
pertaining to guidelines regarding reservation without. affecting determination of "the wards | are. 'hereby e quashed.
Writ Petition | Nos. 35885 (2009, - 35886/2009, 35917/2009, 35918/2009, 5919/2009. 36138- 36 145/20039.. 36279/2008, 36280/2009, 36282 /2009, 36357 /2009. aré partly aliowed quashing only the reservation. made insotar as Schedule Caste and oo Schedule Tribes, Backward Classes and Women in the . . Government Grder dated 30.11.2009 with a direction to the State 'Government to re-do the same strictly in ~ confor mity with Article 243T of the Constitution of India | read with Section 7 of KMC Act within two weeks from a today on the basis of the statistics regarding population
- available on the basis of 2001 census and submit the he
(iii) 72 compliance report strictly within two weeks from the date of this order. The Rules under Section 218) need not be made for this Election, but the State Government shall comply with the statutory. provisions: of Sub.
section (3) of Section 21 to frame the Rules fe for the.
purpose of sub-sections (1) ) & (2) of Section 21 of KMC Act by following the. procedure contemptated under Section 421 of the KMC Act. for future Elections of all the City Municipal Co: 'porations in the } Karnataka State. The same shall be made within six months from the date of receipt of a copy of this judgment.
The second respondent "shall make all necessary arrar gements to adhere to its schedule mentioned in its . notification. dated 7.12.2009 for conducting Election to the BBMP. Under no circumstance, extension of time shall" be given by this court to comply with our oe aireetions.
an) _ For the reasons stated supra, Writ Petition
- Nos.26699/2009, 25293/2009 and 25294/2009 are a {v)
-- Sk/sick dismissed as they are in relation to challenge made to delimitation of wards which cannot be granted in view of Article 243-ZG of the Constitution of India.
The Registrar (Judicial) of this. court is | directed. to furnish the carbon copy of the operative portion of this 2 judgment to the learned Addl. Government Advocate appearing on behalf-- of the 'State Government and counsel for the State Election, 'Commission and also to the BBMP Coramissione> | for F taking steps in accordance with Article 2 243. T.
-. Sd/-
J UDGE Sd/-
JUDGE