Karnataka High Court
Smt.V.Vanaja vs State Of Karnataka on 23 March, 2017
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MARCH 2017
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
Writ Petition No.12444/2017 (LB-ELE)
Between :
Smt. V. Vanaja
W/o. C. Ravi,
Aged about 28 years,
Resident of 13th ward,
Bagepalli Taluk,
Bagepalli-561207,
Chikkaballapur District. ...Petitioner
(By Sri Gowthamdev C. Ullal, Advocate)
And :
1. State of Karnataka
Represented by its Principal Secretary,
Department of Urban Development,
M. S. Building,
Bengaluru-560001.
2. The Assistant Commissioner
Chickaballapur sub-Division,
Chikkaballapur-262101. ...Respondents
(By Sri V. Sreenidhi, AGA)
This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India praying to quash the impugned notification
dated 13.03.2017 issued by the respondent No.1 making reservation
for the post of vice president to backward class a category is
concerned at Annexure-A and in place of said category allot
reservation to the schedule caste Women category and etc.
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This Writ Petition coming on for preliminary hearing this day,
the Court made the following :
ORDER
Mrs. V. Vanaja, the petitioner, has challenged the legality of the Notification dated 13.03.2017, issued by the Government, whereby the respondent has reserved the post of Vice-President, in the Bagepalli Town Municipal Council, for the reserved category of Backward Class-'A' ("BCA", for short).
2. The election to the Bagepalli Town Municipality has a checkered history, wherein the petitioner, Mrs. V. Vanaja, has played an essential role.
3. In 2013, the petitioner had won the election as a Councilor under the category of Scheduled Caste Woman in the Town Municipality election. In order to hold the election for the post of President and Vice-President, on 24.02.2016, the Government had issued a Notification, whereby the post of Vice-President was reserved for the category of Backward Class-'B' Women (to be referred to as "BCB-W"). Since the petitioner was aggrieved by the fact that the post of Vice- President was reserved for BCB-W category, she challenged the 3 said Notification before this Court by filing a writ petition, namely W.P.No.41101/2016. By order dated 29.08.2016, this Court allowed the petition and quashed the Notification dated 24.02.2016. This Court further directed the respondents therein to reserve the seat of President, or Vice-President in favour of Scheduled Caste Woman and to re-issue the Notification.
4. One Mr. B.N. Srinivas, who was arrayed as party- respondent in the petition filed by Mrs. V. Vanaja, was aggrieved by the order dated 29.08.2016. Therefore, he challenged the same by filing an intra-Court writ appeal, namely W.A.No.3699/2016.
5. During the pendency of the writ appeal, and in light of the directions issued by the learned Single Judge by his order dated 29.08.2016, on 27.10.2016, the respondents issued a fresh Notification. According to the said Notification, the post of Vice-President was reserved for Scheduled Caste Woman.
6. However, by judgment dated 13.01.2017, the learned Division Bench allowed the writ appeal filed by Mr. Srinivas, 4 set aside the directions issued by the learned Single Judge, and directed the respondents "to take a decision in the matter and to issue a Notification in accordance with law".
7. Keeping in mind the direction issued by the learned Division Bench, on 13.03.2017 the respondents have issued a fresh Notification. According to the said Notification, the post of Vice-President is no longer reserved for Scheduled Caste Woman, but is now reserved for BCA. Since the petitioner is aggrieved by the Notification, dated 13.03.2017, she has filed the present writ petition before this Court.
8. Mr. Sreenidhi, the learned AGA, has raised a preliminary objection with regard to the maintainability of the writ petition. According to him, since the Notification, has been issued on 13.03.2017, and the Calendar of Events on 15.03.2017, respectively, the election process has commenced. Therefore, the writ petition challenging the holding of election is not maintainable. The only remedy which is available to the petitioner is to file an Election Petition challenging the outcome of the Election. Most importantly, according to the learned 5 counsel, the election is scheduled to take place on 24.03.2017. Therefore, according to the learned counsel, the present writ petition has been filed only with a view to retard, interrupt, obstruct, and delay the process of election proceedings. According to him, Article 243ZG of the Constitution of India, debars the calling into question the election to any Municipality except by an election petition presented to such Authority, and in such a manner as is provided under the law made by the Legislature of the State. Furthermore, Sections 21 to 26 of the Karnataka Municipalities Act ('the Act', for short) deal with filing of the election petition, relief that may be claimed by the petitioner, grounds for declaring elections to be void, procedure to be followed by the Election Tribunal, and decision of the Election Tribunal. Thus, in light of the bar contained in Article 243 ZG of the Constitution of India, the present writ petition is not maintainable. Relying on the case of Election Commission of India through Secretary v. Ashok Kumar and Others [ (2000) 8 SCC 216], the learned counsel has pleaded that this Court should be reluctant to interfere with the election process, once the said process is set in motion.
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9. On the other hand, Mr. Hari A.V., the learned counsel for petitioner, has vehemently contended that the present petitioner has been challenging the action of the respondent in denying the Scheduled Caste Woman the right to stand for the post of Vice-President in the Bagepalli Town Municipality. Even earlier she had challenged the Notification dated 24.02.2016, even now she is challenging the Notification dated 13.03.2017. Therefore, the petitioner cannot be deprived of her right to challenge the impugned Notification merely because the election process has been set in motion.
Secondly, the respondents are violating the provisions of Section 42 of the Karnataka Municipalities Act ("the Act", for short), and of Rules 13 and 13-A of the Karnataka Municipalities (President and Vice-President) Election Rules, 1965 ("the Rules", for short), by changing the reserved category from SCW to BCA in the impugned Notification. Thus, the petitioner has ample right to challenge the Notification dated 13.03.2017.
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10. Heard the learned counsel for parties on the preliminary issue.
11. Article 243-ZG of the Constitution of India, is similar in its cope and ambit as Article 329 of the Constitution of India: both prevent a challenge to an election, except through an election petition. In the case of N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and Others [ AIR 1952 SC 64], the Constitutional Bench of the Apex Court dealt with the scope and ambit of the bar contained in Article 329 (b) of the Constitution of India. While interpreting the words "election" as used in Part XV of the Constitution of India, the Hon'ble Supreme Court has opined that, "the word "election" has been used in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. Therefore, the word "election" used in Article 329 (b) may be taken to embrace the whole procedure which consists of several stages and embraces many steps, whereby an "elected member" is returned." Hence, the word "election" has not been used in a narrow sense.
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12. Further, while dealing with the bar contained in Section 80 of the Representation of the People Act, 1951, and the power of the High Court under Article 226 of the Constitution of India, the Hon'ble Supreme Court opined as under:-
The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court Under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another alter they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. Under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe 9 the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. It follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.
The Representation of the People Act is a self-contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, 10 we have only to look at the Act and the rules made there under. Section 80, which is drafted in almost the same language as Article 329(b), provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part". Section 80, along with Sections.100, 105 and 170 are the main provisions regarding election matters being judicially dealt with, and there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage.
Similar is the co-relation between Article 243-ZG of the Constitution of India, and the remedy of filing an election petition contained in Section 21 of the Act. Therefore, same principles, as quoted above, would apply to the present writ petition.
13. In the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others [ AIR 1978 SC 851], the Hon'ble Supreme Court has opined that "Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals 11 arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over-enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes. "
14. In the case of Ashok Kumar and Others (supra) the Apex Court has opined that "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 12 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."
Therefore, before this Court concludes that the writ petition is not maintainable, it is equally imperative to consider the contentions raised by the learned counsel for both the parties, and to adjudge whether the petitioner has made out a clear and strong case for intervention, or not ?
15. Mr. Hari A.V., the learned counsel for petitioner, has vehemently contended that firstly, under Section 42 of the Act, every Municipal Council is required to have a President, and Vice-President. According to Section 42 (2-A) of the Act, number of offices of President and Vice-President in the State need to be reserved for persons belonging to Scheduled Castes and Scheduled Tribes, and for Backward Classes. According to fourth proviso to sub-section 2A, of Section 43 of the Act, the offices reserved under the sub-section shall be allotted by rotation in the prescribed manner to different Municipal Councils. Moreover, according to Explanation appended to 13 sub-section 2-A, of Section 43 of the Act, the principal of rotation for the purpose of reservation of offices under this sub- section shall commence from the first ordinary election to be held after the first day of June, 1994.
16. Taking the que from the words "prescribed in the prescribed manner", the learned Counsel has brought the provisions of the Rules to the notice of this Court. Relying on the Government Order dated 05.02.2016, which covers the present election for the office of President and Vice-President, the learned Counsel has pleaded that allotment of seats in respect of Scheduled Caste and Scheduled Tribes shall be in accordance with sequence, namely SCW > ST > SC > STW > BCAW > G > BCBW > B > BCA > GW > BCB. Moreover, the sequence of allotment of seats in respect of other categories, would be BCAW > G > BCBW > G > BCA > GW > BCB.
17. Most importantly, the learned counsel has emphasised the fact that "there shall be no repetition of reservation to the seats until and unless the entire cycle is completed". However, according to the learned counsel, the 14 post of Vice-President was reserved for BCA in the third term. Therefore, it cannot be reserved for BCA for the present term, namely the eighth term. For, to keep the post of Vice-President reserved for the category BCA would be impermissible in law.
18. In order to buttress this plea, the learned counsel has heavily relied upon Rule 13-A (2) of the Rules, and has pointed out that even the category of BCA in the previous term shall not be allowed for the same post in the succeeding term until the cycle of rotation is completed in respect of such category. Therefore, reserving the post of Vice-President for the category of BCA is absolutely illegal. Hence, the Notification dated 13.03.2017, deserves to be set aside by this Court.
19. Moreover, the learned counsel has pleaded that in catena of cases, this Court has clearly opined that before a category can be changed from one Notification to other, a draft Notification is to be issued, the comments or objections from the public have to be invited, and only thereafter, a final Notification for holding the election can be issued by the respondents. In order to buttress this plea, the learned Senior 15 Counsel has relied on the case of Ravi and Others (supra) Somashekar. S and Others v. State of Karnataka (W.P.No.15881-883/2016, decided by this Court on 13.04.2016), and on the case of Kallappa v. State of Karnataka ( W.P.No.202075/2016, decided by this Court on 02.06.2016).
20. On the other hand, Mr. Sreenidhi submits that according to Rule 13 of the Rules, twelve posts of Vice- President, in different Town Municipal Council, have to be reserved for the reserved class of BCA. Presently, but for the election in the Bagepalli Town Municipal Council, the elections for all the other Town Municipal Councils are long over. Out of the twelve posts of Vice-President meant for BCA, eleven posts of Vice-President have been filled. Thus, a single post of Vice-President has to be filled from the category of BCA. Therefore, the respondents had no other option, but to reserve the post of Vice-President for the reserved category of BCA.
Secondly, Rule 13-A (2) of the Rules while dealing with the cycle of rotation clearly stipulates that a category in the 16 previous term shall, as far as possible, be not allotted to the same category in the succeeding term until the cycle of rotation is completed in respect of such category. Thus, the bar against repetition of the category is not absolute. A freedom at the joints has been given to the respondents, and the respondents are permitted to repeat the category in extra-ordinary circumstances. Furthermore, the Government Order dated 05.02.2016, clearly stipulates that "as far as possible, the rotation in respect of other categories shall ensure there is no repetition of reservation of seats with reference to the reservation in the previous seven terms except General and General-Woman category". Therefore, the respondent is required to avoid repetition of a reserved category as far as possible. But, even the Government Order dated 05.02.2016, does not prevent the respondent from repeating the reserved category if the need so arises.
Thirdly, Mr. Sreenidhi submits that in none of the cases referred by the learned Counsel, has this Court laid down any guideline, or prescribed any need for issuing a draft notification, and for calling for public hearing, and for issuing a 17 final Notification. According to the learned Counsel, in both these cases, this Court has relied on the case of Ravi (supra), and the case of Manjunath v. State of Karnataka and Others (W.P.No.102319/2016, decided by this Court on 16.03.2016), and on the case of D.K.Timmappa v. State of Karnataka and Others (W.P.No.12256/2016, decided by this Court on 09.03.2016). According to the learned counsel, in the case of Manjunath (supra), D.K.Thimmappa (supra), this Court has nowhere prescribed any guidelines for change of categories in succeeding Notifications. The learned counsel, in fact, has relied on the case of S.T. Krishnegowda v. State of Karnataka and Others (W.P.No.57303/2015 and other connected matters decided by this Court on 18.01.2016) in order to plead that in the said case, this Court has clearly observed that in the case of Chennigappa and Another v. State of Karnataka and Others [ILR 2000 KAR 2941], a leaned Division Bench of this Court had recommended that the State would be will advised to amend the Rules for issuing a draft notification, providing an opportunity to the general public, and for inviting objections from the public, and for 18 issuing a final notification. However, the said recommendation has never been acted upon by the State Government. Therefore, presently there is no legal requirement that before a category is changed for the post of President, or Vice-President, by a subsequent Notification, the draft Notification needs to be published, the objections to the public notice be invited, and only thereafter a Final Notification needs to be issued.
21. Heard the learned counsel for the parties on merits of the case.
22. Admittedly, the election to the post of President and Vice-President of the Bagepalli Town Municipal Council is the last one to be held. For, the election to these two posts has been embroiled in litigation before this Court as mentioned above. Thus, the present election to the post of Vice-President of the Town Municipal Council is being held in extra-ordinary conditions.
23. Rule 13-A (2) of the Rules is as under:
The office of the President and Vice-President of City Municipal Councils, Town Municipal Councils and Town Panchayats reserved fro Scheduled Caste, Scheduled Caste-Woman, Scheduled Tribe, 19 Scheduled Tribe-Woman, Backward Class Category A, Backward Class-Category A- Woman, Backward Class-Category-B, Backward Class-Category B- Woman, General-Woman in the previous terms shall as far as possible be not allotted to the same category in the succeeding term until the cycle of rotation is completed in respect of such category.
(Emphasis added)
24. A bare perusal of the said provision clearly reveals that the provision does not place a blanket ban on repetition of a reserved category. Of course, a reserved category is not to be repeated as far as possible. The use of the words as far as possible clearly reveals that in extra-ordinary situations, a reserved category may be repeated in a Town Municipal Council. Moreover, the bar stipulates that the repetition should not be in the succeeding term until the cycle of rotation is completed in respect of such category. Thus, the same reserved category should not be repeated for two consecutive terms.
25. Even item No.7 in the Government Order dated 05.02.2016, is framed in similar terms. For, it clearly states that "as far as possible, the rotation in respect of other 20 categories shall ensure that there is no repetition of reservation of a seat with reference to the reservation in the previous seven terms except General and General-Women category." Even here the term used is "as far as possible".
26. In the present case the respondents were faced with an extra-ordinary situation: firstly, out of the twelve posts of Vice-Presidents which had to be reserved for the category of BCA, eleven were already reserved, and the elections were over. Therefore, the twelfth post of Vice-President perforce had to be reserved for the category of BCA.
Secondly, it is only in the third term that the post of Vice-President was reserved for the category of BCA. Therefore, the reservation of the post of the Vice-President in the eighth term would not violate Rule 13-A (2) of the Rules. For, the reservation is not for consecutive terms. Therefore, the reservation of the post of Vice-President under the impugned Notification for the category of BCA is legally valid. Hence, the first contention raised by the learned counsel for petitioner is unacceptable.
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27. As far as the need for publication of draft Notification inviting objections from the public and the requirement of issuing a Final Notification only thereafter is concerned, suffice it to say that there is some legal confusion about the same. In the case of Ravi (supra), this Court had not laid any guidelines to be followed when a category is changed from one Notification to another. Moreover, in the case of Somashekar (supra) this Court has relied on the case of Manjunath (supra) and D.K.Timmppa (supra). However, in neither of these two cases, this Court has laid down any guidelines for change of categories from one Notification to the other. Although in the case of Kallappa (supra) this Court has relied on the case of Somashekar (supra), Ravi (supra), but even in the case of Kallappa (supra), no such guidelines were ever prescribed. Thus, these three cases are a classic example of the blind following the blind.
28. It is only in the case of S.T. Krishnegowda (supra) that this Court has noticed the fact that a learned Division Bench of this Court in the case of Chennigappa (supra) had recommended that the State Government would be well advised 22 to formulate certain Rules with regard to issuance of draft Notification, calling of objections by the public, and issuance of Final Notification. However, the said suggestion made by the Court has not been accepted by the Government. Thus, presently, there is no legal requirement of publication of a draft Notification, calling for objections from the public at large, and for the final Notification to be issued. Therefore, the contention raised by the learned counsel for the petitioner that the said procedure has not been followed in the present case is clearly untenable.
29. Considering the fact that the petitioner has not been able to make out a clear and strong case for intervention of this Court, that too, just a day prior to holding of the election, this Court is of the opinion that the present petition is merely a subterfuge for retarding, interrupting, protracting or delaying the progress of the election proceedings. Hence, the petition is not even maintainable as it is hit by the prohibition contained in Article 243ZG of the Constitution of India. This Court is of the opinion that the writ petition is not maintainable. Furthermore, this writ petition is deprived of any merit. 23
30. For the reasons stated above, this Court does not find any merit in the present writ petition. Therefore, the writ petition is, hereby, dismissed.
Sd/-
JUDGE Np/-