Karnataka High Court
Karnataka State Election Commission vs Sri G Sangappa on 3 December, 2010
Equivalent citations: 2011 (1) AIR KAR R 820
Author: A.S.Bopanna
Bench: A.S.Bopanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03!" DAY OF DECEMBER 2010
PRESENT
THE HONTSLE MR. J.S. KHEHAR, CHIEF' JUSTICE
AND
THE) HONBLE MR. "Jus'r1c1«: A.S. B0r>.eL1*xI1\1.4.\.:AV: "
WRIT APPEAL N0.4506-45O&§~IOF--«2O1--f)Vi:..§3l;iEZ1.E)v4.'.i'.. A
W.A. N0.45O6/2010:
Between:
Karnataka State Election Con"1fn'is_fsjo"r1,.
now represented by its'=Ui1der S;ecrei:_ary';r _
KSCMF Bulldlng, 18% Floor; ' A A '
No.8, Cunningham Road... . A
Banga1ore--56_O 052.
(By Sri. KN.' Ph-am":idra';--.AdvQCa€e)
And:
V' AS"/0 Neeiakantappa,
v21b0_'utV 56 years,
. R/O 'i'Jd.._4:'-3;=(Ga'r1ganakatte (Asligrama).
' AI);;{xra12ag5e_re' Tafuk,
17)'ava..1f1.21g§e1'e District.
'I'he~~St:»1te of Karnataka,
A A. R_ep1'e'sented by Secretaly to Government,
" _ D'e«;3artn1e11t of Parliamentary Affairs and
Legis1ati()n,
Vidhana Souciha,
" Banga1c)1'e~560 001.
3. The State of K.arnat.aka.
Rep. by its Secretary,
Rural. Development and
3. The State of Karnataka,
Rep. by its Secretary,
Rural Development and
Panchayat Raj Department,
Viclhana Soudha,
Banga1ore--56O O01. ..
(By Sri. D. Nagaraj, Advocate for C/R-1.
Sri. Basavaraj Karaddy, Prl.Govti fo:"'R*i2:j'_&}{VR--3)p it
W.A. Nos. 4507-08/2010:
Between: _ V
State Election Commission, ._ . .--
Now represented by its Und<31f_S€3C1'c«'?_t61I3? Q
KSCMF Building, ' it to ''
1st Floor, No.8, Cunningham Ro;ad;ffj
Banga1ore~56O 052. H " pp Appellant
(By Sri. 2: =
And: i it D D D it it D
1. Sri. No.' 'i'1"ataraj,
S / o=.Sri .l N C} .l£shwa1=ap*pa;
Aged'ab'oput'38'5zears-,__
At posts _pNi.thadi; ._An«n~agodu Hobli,
Davanagei e A'I'al"uk,V'
_D:a.Vanagere Di~s.tri.c't.
' 2.'"Sri."vN';D;-tkxrumurthy,
. o'vS1*.ix. B}1o'Vi Dyamappa,
post': liflifithadi, Annagodu I-Iobli,
D.aVa'n'a~gere Taluk,
Davazfiagere District.
A "if 3i'Ill1e Principal Secretary,
Panchayat Raj and Rural
Development Department,
' Government of Karnataka,
Viclhana Soudha,
Bangalore--56O O01. Respondents
(By Sri. S.S. Koti, 82; Sri. Vinayaka S. Koti, Adv.for R-1 85 R-2 and Sri. Basavaraj S. Karaddy , Pr1.Govt.Adv.for R--3) 'V3/V
-mum.
'~..s.) Writ Appeals are filed under Section 4 of the Karnataka High Court Act, 1971 praying to set aside the order dated 25.11.2010, passed by the learned single Judge in WP. No.36337/2010 and W.P.Nos.36S48~ 36549/2010. 3':
Writ Appeals having been heard and Judgment, on this day, the Chief Justice d'el__i'vere_d"
following: = "
Junomesri J.S. KI-IEHAR, C.J. g V Respondent No.1 Court by filing W.P. No.36337 of a notification issued by the state dated 08.11.2010 ("Annexure:A;*'5 sfyvriftiiiiiappeal). Through the it Election Commission had earmarkgedgi c;'ategory~wise for purposes of reservation.--__i . The isreservation made were not only for sebgeemiedcastes,_s«:hedu1ed Tribes and Backward Classes, but' als'o_iior*Women. The remaining constituencies were to be fiilleidiiupi any reservation. The claim of respondent ix_No.1 before this Court was, that the reservation contemplated the Karnataka Panchayat Raj Act, 1993 (hereinafter referred to as the 'Panchayat Raj Act'), read with the provisions of the Karnataka Panchayat Raj (Reservation of Seats in Taluk Panchayats and Zilla Panchayats by Rotation) "C3""Ww;.~9-.r:-%9v Rules, 1998 (hereinafter referred to as the Reservation by Rotation Rules, 1998), have to be in consonance with the mandate of reservation contained in Article the Constitution of India. The pointed submissi_Qri"at'_~t.h_ehands of respondent No.1, during the course of»»vQf1'it"§:§roceedings.AV was, that the "rotation" in the ;_'1'12dtti":7f 8 -of" "1'e's_er*=;ation"., .- contemplated under the afo_r'e.saidl'provisioinsg been given effect to, through the_i:ll"irnp.ugned«--notification dated 08.11.2010.
2. to be disposed of by an order 'Vsurri and substance, the learned' the conclusion, that the notification'-- was not sustainable, in terms the"rrilandatei'-0fTSection 162 of the Panchayat Raj Act. sought Vtiofliibe contended, that the reservation e*-conte,ri1:1blVateid.c~through the impugned notification had merely prov.ide_d f'reservation", by alternating between Scheduled :."Ca,stezs".----and Scheduled Tribes, and not in terms of the .._ii'rria~n--date of Section 162(3) of the Panchayat Raj Act, by 1 -"rotation" amongst all the reserved categories.
3. = Through the instant writ appeal, the Karnataka State Eiection Commission has impugned the order passed 'of;
"-»--....¢-
xle um-.-~..,..
the learned Single Judge dated 25.11.2010, disposing of WP. No.36337/10 (and other connected writ petitions).
4. First and the foremost, during theyi_i"C_ii3L1rse of hearing, it was the vehement contention'_.--3:oiii'thje---..iieai*ned Counsel for the appellant, that the ywrit_Vpetition"fil'ed before:._ the learned Single Judge was not':.mairi~tiainab'le,' andf--~as-isuchi,i'i "
should not have been enteritaiined for Vadjud.i'ca.ti'own. on merits by the learned Single Judge:.---~li1-So--...far as theyinstant aspect of the matter is concerned, leai'*n;edi'C_our1sel for the appellant placed emphati:::'1'elianceion Artic*le 2423i-i'O of the Constitution of india.
A1-t,icle~-- .2'4'§3eU---,aforementioned, is extracted hereunder: " ' = ".4l;1*tic1e to interference by courts in electgral matte'rsh.}' Notwithstanding anything in this A. Constit ution-i' i i the validity of any law relating to the delimitation of constituencies or the allotment seats to such constituencies made or ~ purporting to be made under article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State."
it " Based on the aforesaid provision, it is the submission of the learned Counsel for the appellant, that there is a complete Ufiaaa Swag bar to interference at the hands of Courts, in electoral matters, under Articles 243-0 of the Constitution of India, and as such, it was not open to the learned Singlieiigiudge to render the impugned judgment dated _.setting aside, the determination of the appel1a,nt,"vv.Viri-ifl"reserving?_ particular constituencies for Tribes, Backward Classes.'an_d Worn-en, Panchayat elections.
5. While repudiating, ti',1€f cointention advanced at the hands of the» leari1ed::A_'Aco,:un:se'l.xfoi1f"--ftliegfiappellant, it was the vehement counsel for respondent No.1, before the learned Single Judge to enforce the process of "resegrvation"3, ._by.p'rovidi'ng for "rotation" as per the mandate 'i V' Sectifjn i632 oftheiVPanchayat Raj Act read with, Rule 3 of i-the;léeservationlby Rotation Rules, 1998. It was the emphatic con-tentvivorinof the learned counsel for respondent No.1, that if'4"*..i:"tlj11fougI*x..-- 'Writ Petition No. 36337 of 2010, respondent No.1 not assailed any legal provision / legislative enactment, ,,.relating to any aspect whatsoever, including allotment of seats. it was therefore reiterated, that the claim was merely for the enforcement of the existing provisions of law, and WWW 7 accordingly, not within the scope of the bar contemplated under Article 243-0 of the Constitution of lndia.
6. We have given our thoughtful consideration to the first submission of the learned Counsel for The bar to interference by Courts __1'.n._electora3;'f'mat»te'r,s v,.u'nd,;et~.,, Articles 2434) of the Constitution-offlindia,'cangbeiudivided into "
two parts. The bar underVith:e~»..first'"part of the said Article) pertains 'p:r.i,or..i§to the actual process of election, the second part (under clause .._¢/3f to a challenge on the process. in so far as the present con'ce'r}r1ed, the claim raised by respondent being"before-,_tl:e commencement of the electoral process, itiuca,_r1 fall oinlywunder the first part referred to above, ' j,.Cv'-'A; vvithin' the amiliitvof Article 2434) (a). H examination of Article 243~0(a) reveals, that contemplated under Article 243~O of the if Con.,stitsution of India, pertains to a challenge to a legal if'provision/legislative enactment relating to delimitation of A constituencies, or alternatively, the validity of any law relating to the allotment of seats to such constituencies, made or purporting to be made under Article 243K of the Constitution of India. in so far as the controversy before us is concerned, the same does not fall in any of the aforesaid two classifications, and as such, must for all intentio.ns and purposes be considered to be beyond the scope' of Article 243--O(a] of the Constitution of india::r.W'e:, iiieifeierie-,._ find no merit in the first submission :a'dv3antc,ed. at tire-._h'e:ritds of. -A the learned counsel for the app_el1ant.,_
8. The second the learned counsel for the appel*lant,i'- the nature of a Preliminary of the learned Counsel eontroversy similar to the one respvdndent No.1, by filing writ petition--._l\I'o.' been raised before this Court on an,earlier,ocoasiioniiiithrough writ petition No. 14625 of (ai'1di'i'other choninected writ petitions) which came to be iiibyie Division Bench of this Court on 30.06.2005 in H.C..__v'Yat*I1ieesh Kumar and Others vs. The Karnataka farleetieiei' Commission, HR 2005 KAR 3323. ii is the subrriiission of the learned counsel for the appellant, that this ~~Court while deciding in 21.0. Yatheesh Kumafs case (supra) recorded the conclusion, that the Reservation by Rotation Rules, 1998, were ultravires, and as such, void. This Court )7 also in the aforestated judgment held, that the notifications issued by the State Eiection Commission relating to allotment of reserved seats, to different constituencies was unacceptable in law, and as such, quashed notifications. It is the submissionmof the.--iearine>d'*Vcourisei the appeliant on the basis of rendered this --:
Court, that the controversy theiviirespondent before this Court is 't.o__th_e? controversy adjudicated upon by Yatheesh Kumar's case (supra). '
9. it ho'w?eyer,.,,,~ polintied out by the learned that the order passed by a Division Bench of this Yatheesh Kumar's case (supra) was assaiieid ._:by-"preferring a Petition for Special Leave to which granted by the Supreme Court, renumbered as Civii Appeal No. 4523 of QOAGS. (Referring to an order passed by the Apex Court on in H.C. Yatheesh Kumar's case (supra), it was submitted, that the operation of the judgment passed by the ~~vDivision Bench of this Court was directed to be stayed, and accordingly, elections were directed to be conducted in consonance with the notifications issued by the Karnataka .i.e. I0 State Election Commission. A copy of the aforesaid order dated 03.10.2005 was handed over to us in Court, the same was taken on record and marked as "Annexure%rC". Our attention was also sought to be drawn to 'that the aforesaid interim order passed by the _S»L1prerne,:' Court ..was_ made absolute on 21.112005. The gr;;1e£'<1;ii¢di reported in Karnataka Statevlglection Yatheesh Kumar and others, Court Cases
181. It was, therefore,".r:1'1e, the learned counsel for the appellant,__ that for this Court, to examine in the same context, as it was the Division Bench in H.C. Yatheesh .,an,d"o:tI1e'rs case (supra).
10. .. L atfheisecondiisubmission advanced by the learned co'unse[l* for.' theappellant was sought to be controverted by for respondent No.1 by contending, that re'spon.dent* iNo.l had not assailed any statutory provision C. 'either the Karnataka Panchayatraj Act, or the, 3 i*_iReserVation by Rotation Rules, 1998. It was sought to be " Wcanvassed, that the sole object of respondent No.1 in approaching this Court by filing Writ Petition No.36337 of 2010, was to ensure, that the mandatory provisions of law rww 11 should be given effect to, in letter as well as in spirit, within the frame~»work of Article 2431) of the Constitution of India.
11. Keeping in view the express contenti,on._:advanced at the hands of respondent No.1, we are of _the adjudication of the controversy earlier by" 'li--LC'--., Yatheesh Kumafs case (supra},, a_s'ia'lso».,._ithle iiite.rloeutory~. * orders passed by the Supreme Court ..course' of adjudication of an appeal preferr_e'd,_atherefrornV)_.ii would have no bearing on the present Since according to learned writ petitions filed by responL5len:t"'l§oQil--. to, giving effect to the "reserviatliVon'.';as also,fj"ro.1atio.n""contemplated under Section 162 Act, read with, Rule 3 of the Reservatiori" Rotation Rules, 1998. Since this Court has .V."'--Ariot"=S:be7fen "l'requireldmiito examine the validity of any legal enactment, but on the contrary, this Court hasifonly been required to ensure, that the relevant :"'provisio.1is of law are given effect to, it seems to us, that the 'Aslecond submission advanced on behalf of the learned counsel the appellant, is rather far fetched. As such, we find no merit, even in the second contention advanced at the hands of the learned counsel for the appellant.
Q"
1') H
12. In so far as the third contention is concerned, the sarne has a number of facets. We shall first delineate the different facets projected at the hands of the learnedi'Counsel for the appellant, while canvassing the third _
13. It is "firstly" contended .b.y__ thelearne.di'Counsel"for_ the appellant, that the issue of;":.'frcitatiori".. i11.:i'the:"iin'atter of" "
"reservation", for Panchayati eliectionis, Vunder th._e"'Constitution of India, has been left_.to thed,.wisdorrJ..,'of inidividual States. In so for as the instant aspect' is concerned, our attention was i1fiv'i.ted the Constitution of India. Arti.cle_:-$1.35'---is hereunder :
'€As£ii¢isi,?r24é}b. ijRsssrv"s£iisn of seats. -- (1) Seats shall be reserved':'foprl~_ ' '
a) the_4SChe'duil'ed Castes; and ,. b.) the 'Schesdvuied Tribes, , in iietreryy" Panchiayat and the number of seats so reserved ' _V'shall,_vbea7,"a._S nearly as may be, the same proportion to the ..t-otal.,nun1ber~~ of seats to be fiiled by direct election in that ".P"anchayjat:,3=as the population of the Scheduled Castes in that ,_vPan.'chayat area or of the scheduled Tribes in that Panchayat area bears to the total population of that area ., and "such seats may be allotted by rotation to difference _ constituencies in a Panchayat.
2) Not less than one--third of the total number of seats reserved under clause (1) shall be reserved for women S belonging to the Scheduled Castes or, as the case may be, the Schedule Tribes.
3) Note less than onemthird (including the number of seats reserved for women beionging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be W"
'S is filled by direct election in every Panchayat shall be reserved for Wornen. and such seats may be allotted by rotation to difference constituencies in a Panchayat.
4) The offices of the Chairpersons in the Panchayhats at the village or any other level shall be reser.ved'«<.yfor the Scheduled Castes, the Scheduled Tribes ,and».vvomlen in such manner as the Legislature of a State Ptovide: if Provided that the nurnber, of:_officles'l reserved for the Scheduled Castes and the, €_~_ch.e'duledi Tribes in the Panchayats' at eachlevel 111* any State shall bear, as nearly as may be ,'-.tl'1~e same__prop"ort'i--on' to the total number of such offices in thePanchayats' atjeach level as the population of the Sche'duledl'Castes in the State or of the Scheduled Trib.es in the "~-St.ate_ bears to the total population of the State:_l' S if V Provided_'fL1rther"' one--third of the total numheripf 'officespof Chairpersons in the Panchayats at each be.:_re'served..'for women:
Providedliiaiso that.ltl*i'e«. of offices reserved under thisvvi"clausi::y shall allotted by rotation to different Pan'c_hayats' atr--«e_ach"leve.l_. -- I S} 'i'he_4reserv_ation.po_f seats under clauses {1} and (2) and A. the res"er_vation of offices of Chair persons (Other than .«.?.4:the'reserv'atio_n of wornen) under clause (4) shall cease A - tolrhavep effectloln the expiration of the period specified in " '~ _ V arVticle..y334.
A"-g6) ['\lothit1lg in this Part shall prevent the Legislature of a State firom making any provision for reservation of seats 2 in" nariy Panchayat or offices of Charipersons in the Pagjchayats at any level in favour in favour of backward if class of citizens."
-- on the term 'may' with reference to "rotation", in the matter of "reservation" in different constituencies in Panchayats, it was sought to be asserted, that the mandate expressed in Article 243D, must be considered to be I4 discretionary. As against the aforesaid, it was pointed out, that for all other matters the term 'shall' has been used in Article 243-9 of the Constitution of Endia, the distinction contemplated, in matters for effect was to be depicted. it is, therefore,-su--':iifnitted<,_th:at' issue of "rotation" for purposes of,'"re_'serVa'i:ion."l," left}. -A to be determined by each':_S<tate lG.oirern1ne'nt'v..by _.itself,i*by exercising its own discretion.
14. This takesllu's_,'to' «%g¢¢m+ facet of the third submission, "for the appellant has placed relianc:-e°*_o"r1l:l"Sect:i§n" the Panchayat Raj Act. Sectionillliéz' ihsreproduced hereunder :
C '"Sectiori~1t52_?"'Rle--servation of seats : (1) Seats [shall he resersrecE'1;y5 ethelfis'-tate Election Commission]] in the V _Z_i11a Pan_chay--at.'*.-
. a) for the___Scheduled Castes ; and for the Scheduled Tribes;
it of seats so reserved shall bear, as nearly as may bi? same proportion to the total number of seats to be by direct election in the Zilla Panchayat as the fffpopulation of the Scheduled Castes in the district or of the Scheduled Tribes in the district bears to the total popuiation of the district:
15
Provided that at least one seat each shall be reserved in a Zilla Panchayat for the persons belonging to the Scheduled Castes and the Scheduled Tribes] (2) Such number of seats which shal.ll,>._a's.V nearly as may be one -~ third of the total number"-oi"-seats in a Zilla Panchayat [shall be reserved by the [Start-e_[_El-action Comrnission][ for persons belonging to thje..Backfuvard Classes: * * [Provided that out of the seeats [reserved thisk * sub--section, eighty percent of the totaI1'jr1lurr:be=r'of such seats [shall be reserved by then [State Election Commission]] for th4e p"ers'ons falling under category 'A' and the remaining twen_tyl:'p_e_r>c[ent of the seats [shall be reserved by the [State Elecztion Commission]] for the persons falling undler.ca_te;-gory--5B?];l _ (3) _Not lesslllthan onetliirdy bf the seats reserved for each" of"'ipers_on"sbelonging to Scheduled Castes'; l"S_cii.edu1e.d-.r_Tribes-fvand Backward Classes and those _of-f__the non¥r.eserved}seats in a Zilla Panchayat [shall_be_ re'serve---d the....[State Election Commission]] for women: --
C' 'Provided--i.tl2at 'seat reserved under sub--sections (1), (2) ancd_(3)V shallibe allotted by rotation to different 5 constituencies in the district:
A "Providedlllifurther that nothing contained in this .i section"-.sha1l be deemed to prevent the persons lbeio_n"gingj.to the Scheduled Castes or Scheduled Tribes A "-For 'Backward Classes or Women for whom seats have beenjteserved in a Zilla Panchayat from standing for election to the 1'1OIl""I'€S€'I'V€Cl seat in such Zilla Parichayat."
g:."l_t".i_s:.i.--'the common case of the rival parties, that the first it .,,p.1ioviso under sub--section (3) of Section 162 of the Panchayat V Raj Act, postulates "rotation" of seats reserved for Scheduled Castes and Scheduled Tribes [under sub--section (1)] , for U l6 Backward Classes {under subsection (2)1, and for Women [(under sub--section (3}]. Based on the aforesaid, it is not disputed before us, that the State of Karnatal<a,c._V_in the exercise of discretion under Article 243]) of of India, while providing "reservation".'"it1'--.::the"»: mpatter".of--.,p Panchayat elections, also provi'd,ed;"'for "rotation":}--..p'it' vvasn "
further the contention of learned 'i,coi,_1n.sel-* for wthe appellant, that "rotation" in 'freserVa.tions"'wasuvgiven effect to through the Reservation l998.
l5. The contention advanced on behalf 'based on the Reservation by Rotati<:,iniiiViiRuleVs H learned Counsel for the appellant "has on Rule-3. Rule--3 aforementioned,' is being extracted hereunder :
""~__ Rule 3. Reservation of seats in Taluk ifianchayats and Zilla Panchayats by rotation:- Out of the seats reserved for the persons '-belonging to the Schedule Tribes in a Zilla ' Panchayat (the State Election Commission) shall allot by rotation one seat each to the Taluks to the District giving precedence to the taluks having larger population of Scheduled Tribes:
Provided that where the number of seats reserved for the persons belonging to the Scheduled Tribes exceeds the number of taluks in the district, the seats remaining after allocation under this clause shall again be allotted to taluks giving precedence to those having larger population of Scheduled Tribes:17
Provided further that while allotting such seats to the constituencies within a taluk precedence shall be given to the constituencies having larger population of Schedule Tribes:
(Provided also that at least onvcfseat each shall be reserved in a Zilla Panchayate-i'V;~forV. the persons belonging to the Scheduled('Castes-_tiand the Scheduled Tribes.) ' if =
(b) The seats resiervedi to the Scheduled Tribesflini a'='l_'a1u1<: P_"anchayat"' shall be allotted by '(the _.¢ts1;ate Election Commissioner) by._ ir0._tatioin._ to _ V the tituencies having the highesti'i'p_e'1'centage(of "C population with reference tothe population of tirivetaluk, in which seats have--.._ié.otbeen"..(_altlotted to them in the l3revious terrniiii C if V if , «--,('1"-'~rovi;€1'ld that' at'_-least':one seat each shall be reserxtsield. in".al',Taluk. Panchayat for the persons ::belo"ngi'n5g to;-,t'th_ei"t_ Schr.--'duled Castes and the S.ch-ed,ulecli_Trib.es.()V "
ii'7;gt2)Thcvsiiiseats.' reserved for Scheduled Castes if inT.alul%:.Panchayats and Zilla Panchayats shall be i"w-c4allotted'"b'y.- trotation (X X X X X) to the members bel_onging'=_to*"the Scheduled Castes in the same manner as specified in sub--rule (1) above.
3) The seats in Taluk Panchayats and Zilla if 'vPanc.hayats reserved for Backward Classes (X X X X shall be allotted by rotation (by the State . _ ifilliection Commission after taking into consideration such factors as it may deem fit).
4) The seats reserved for women in each category referred to in sub-rules (1), (2) and (3) shall be allotted by rotation (by the State Election Commissioner after taking into consideration such factors as it may deem fit) Provided that where a seat in a constituency of the Taluk Panchayat or Zilla Panchayat was allotted to a category referred to in sub~rules (l, {T 18 (2) or (3) or for a women during the previous term, (the State Election Commissioner) shall not as far as possible allot a seat in that constituency to the sarne category or for a woman in the succeeding term." 7 Based on the rotation stipulated under vehement contention of the learnedppcounsel'forzthe: appellanltyk that the mandate of "rotation" Vc.ontem:plated.l S:ection'.. -:
162 of the Panchayat Raj'1V_uAct, stmhids' through Ru1e--3 of the ;__Reservat_ion;__b};_Rotatio:nA Rules, 1998. It is the pointed contention. Counsel for the appellant, thatj§)vh_ile constituencies for the upconeingp the procedure of under Rule 3 of the ReserV:vatio'n' has been followed in letter andllspirit. 1' -_ A /ll/f,1\eA';llo'c1rth" facet of the third contention advanced tlbyplltheelv'~learhed--icounsel for the appellant, was based on a con_jointv_retadi:ng of Sections 161 and 163 of the Panchayat Act,r~1993. Sections 161 and 163 are being extracted hereunder:
"Section 161. Determination of elected members after census. --- Upon the publication of figures of each census, the number of elected members of a Zilla Parichayat [shall be determined by the [State Election Comrnissionlj on the basis of the population of the district as ascertained at that census:19
Provided that the determination of the number as aforesaid shall not affect the then composition of the Zilla Panchayat until the expiry of the term of office of the elected members then in office."
163. Deiimination of territorial constiti1e,fx--ei'es State Election Commission shall;'_"riotilieation::_
(a) divide the area within the jti'r,isdi_ction ofiievery Zilla Panchayat,...f0_r_ the 'purpq,<~,.e 'cfv'e.lecttion. to; such Zilla Panchayat into --ais<_rnan'y single "
member territoria'l*..;:onsti'tueneie's.. then "
number of members requiredv to 'bepelected under Section 160-;._ V V' A f r
(b) determine extent 'of' each territorial constituen_Cy_vvhi'c.h shall'beHa_t{aluk or part of a talufik; and A p
(c) determine territorial constituency or V cons_tituenc_ies irii"whlejh. seats are reserved for the peI'eons'«..:i'belo'ngirig to the Scheduled _ 'gt-'Caib.tes,, "Schedu"1edfI.'ribes, Backward Classes .. .';7arid.:for vvomein". » Based t.tivvo"provisions, it was sought to be assertediatpithe hands learned counsel for the appellant, that._§ai"ter the "Qi1:.1i11'I1i1:'1'c':l'ElOI'l of every census operation, the composition of the Zilla Panchayats has to However, in View of the proviso under V Seetiion"'*ilb.1iiof the Panchayat Raj Act, despite the holding of a iii,j.:fresh,,,census, the existing composition of the Zilla Panchayat ' rieiduired to be maintained as it was {prior to the census), iiiiintil the expiry of the term of office of the existing elected members. It is, therefore, necessarily emerges, according to the learned eounsei for the appellant, that the process census .......aa-
aw «MW 20 would result in delimitation of constituencies, which would in turn have an effect, not only on the composition of the Zilla Panchayats, but also on the Taluk Panchayats. 1'7'. In order to substantiate the aforesaid lithe matter, learned counsel for the apjjellant., handififii o*.5erVi.'to if during the course of hearing, al'coirn1.3i1atio*n "indiicatinlg~.,Vthei number of constituencies I5aI:eh'ayats','Jdistrict~--\yise, during the years 20f)'Q, fllhe aforesaid compilation was takenyonl as "Annexure- A". Based on" reference was made by way of made to the Bangalore tlheiiinumber of constituencies in the year'2_0'0f3 of constituencies came to be igncreaseldw-to 'Q6 the year 2005, and further to 34 in Illustratively again, reference was made to the District, wherein the constituencies in the year 2GOO-xlifere 38, which came to be increased to 40 in the i 2005, but came to be substantially reduced to 18 in the "y4ear':2Ol0. Based on the aforesaid illustrations, it was the "'Vehement contention of the learned Counsel for the appellant, that the aforesaid changes, would have a bearing, not only on the issue of "reservation", but also on the issue of "rotation" U W$w\%Q 21 (in the process of reservation). In so far as the Davangere District is concerned (with pointed reference whereof, respondent No.l had preferred WP. No. 3633'7u'ofQO10), it was the submission of the learned Counsel _1'-1:51"t.he.i,_j:appe1lant, that in the year 2000, the number Davangere were 31, but the conistituenficieis .'increase,_<_:1 =to.i34 in I the year 2005, and remain'u_na1tere_d" at thejzear 2010.
18. During the coursegof Counsel for the appellant, als.o«'ha_nde§§_1 oyer: to,us.,_'-.a_.cornparative statement of delimitation Panchayat Constituencies from 20f.)_i5fh The aforesaid comparison statement' and marked as "Annexure--B". Inviting, the Court's attention to "AnneXure--B" learned foirgthe appellant contended, that various villages I =fro.mippartivculare" constituencies came to be taken out during the"-«.._cot__irseA.3' of delimitation, so as to be added to other V"*constitu.e'ncies. These changes made, from time to time, resulted in a change/ alteration of individual constituencies of ..Taluk Panchayats. According to the learned Counsel for the appellant, these changes were bound to affect "reservation" and "rotation" therein, while earmarking constituencies for 3"«gM.:..?-¥a"
22
giving effect to Section 162 of the Ranchayat Raj Act, read with Rule 3 of the Reservation by Rotation Rules, 1998. As such, it was sought to be canvassed, that each census and delimitation, has a bearing on the process_o~f--J.'fre_sEe1yation"
and "rotation".
19. The "fifth" facet of the third ?'_'_conte1it_vi'ori by ' the learned Counsel for theiianypellanht, on another vital fact brought to ovurzynotice;'referencve. toESections 161 and 163 of the the undisputed position betvy,e.en delimitation was carried out in the year 2005, which was given' Rhanchayat elections, which were conducted «in i.e. 2005. According to the learned LCou'nsel=f.or thevappellant, the issue of delimitation of'.efisubstantiialiiiisignificance, for the implementation of "rotation" contemplated by Section 162(3) of thle"«Pancl1ay'at Raj Act, read with, Rule 3 of the Reservation by J'Ro,tation'. Rules, 1998, inasmuch as, the number of e._i"c_onstituencies to be filled by reservations has to be "calculated, as a matter of first step, under sub--rule (1) of Rule (3) of the Reservation by Rotation Rules, 1998, for Scheduled Tribe candidates after every census and delimitation. Process 3W~'*Ei W9"
ix) 1;) of reservation is required to be replicaed for Schedule Cates, Backward Classes and Women candidates (as a matter of first step} under sub--Rules (2), (3) and {4} respectively v.of:lRule 3 of the Reservation by Rotation Rules, 1998. . lt_is"acl§no{m7_ledged at the hands of the learned Counsel fortheifa15peil.aI:t:,"
after determining the specific manner3of=reservi'ng,.__seats for, f constituencies, both at Panchayat levels , the of Rule 3 of the Reservation by provides for the "rotation" individ,ually"' " Tribes, Scheduled Castes, by providing that, the categoryr-o.ut'A' in_,a::lconstituency has been filled up during preceding term, as far as possible, will not lbe_pfilled._ the same category in the next proces"s.«-._Byv this, it is submitted, that the "rotation" in "'rese,rva'tion«'.', in the process of Panchayat elections, has been given effect to.
20; ii So as to summarise the eventual conclusions R to be drawn by the learned Counsel for the appellant, "-vvhich we shall refer to as the "sixth" facet of his third submission, it was asserted, that the "rotation" contemplated under Section 162 (2) of the Panchayat Raj Act, has been MW 24 given full and complete effect by the State Election Commission, ie., the appellant herein, as per the mandate of Rule 3 of the Reservation by Rotation Rules, for doing so, the starting point has been taken when the election process was conducted---fo_r~.,the: firstllitime, after the culmination of census, 3de'lirn.itation.___of;Talul; I Panchayat constituencies. V-'blginctte the._ellectio'ri' of was taken as the first for llreslervation, the said reservations were 'Tribes (under sub., rule[l} of Rule_3 of Rufles,l998) for Schedu.led'v (2) of Rule 3 of the ReseWatiQn*~g..b$; i998), for Backward Classes in terr-.*,1_s'--of of: Rule 3 of the Reservation by Rotation Rules, for women in terms of subwrule (4) .--__'of of it ""th.e.....Reservation by Rotation Rules, 1998. 'Wlherea,s,* instant process of election, which is to be heldiliin the "reservation" and "rotation" has been made in te1=rris;_ of the proviso under sub--rule (4) of Rule 3 of the "lii"_Rese_rvation by Rotation Rules, 1998. According to learned counsel for the appellant, it has been ensured, that the constituencies filled up by reservation, during the preceding electoral process (held in 2005) by providing for reservation W \l 25 for a particular category, are not reserved for the saine category in the upcoming Panchayat elections (to be held in 2010). Thus viewed, it is submitted, that the.._'lappellant herein, must be deemed to have given effectto"th'e.._f'rc:t_ation"
contemplated under the Panchayat Raj A'ct»,.:
Reservation by Rotation Rules, 3
21. Having gone . filedvbby respondent No.1 in .\.ve'find,,.t§hat the claim raised on behalf of 9 ; _was sought to be substantiated gaslsurription, that the starting point ble~,,';:hle' elecltioniprocess of the year 1995, and process in the year 2005 (as in the case ofjhe for the appellant before us).
Having give'-nil it-holiightful consideration to the rival 9 9°--subrriis5siion'sgadvancled on the instant aspect of the matter, we 9 the initial reservation for filling up con--s_tit1;_ver:_cies by way of reservation under sub--Rules (1) to ll"'l"--..lVl"'{4})V,of Rule 3 of the Reservation by Rotation Rules, 1998, has to cornrnence only from the electoral process conducted in the
-year 2005. This conclusion of ours is based on the proviso to Section 161 of the Panchayat Raj Act, which mandates, that the conduct of a census would not affect the composition of a WWW 27 advanced by the learned Counsel for the appellant. During the course of hearing, it was the vehement contention of the learned Counsel for the appellant, that the pr0cesVs',l:olfzr0tati0n contemplated under Section 162 of the has been given effect to through Rule 3 ofthe:fjRese1'vation,,153; Rotation Rules, 1998, whereas, it.__wa_s,souglit.,lto 4be''can.§Iasseel,A 4] at the hands of responclentpz No;~l,l thatr Reservation by Rotation does not fully implement the of rotation provided for under Se"ct._i:on__' Raj Act. It is not possible for" issue canvassed at the it for the first respondent.
This ».l§f:ii,:§ttt~s'e1ves is based on the bar to interfere 'by CJour_ts,._ in,_l.electora1 matters, reference to which ._II1ade'«h.erein above, based on Article 243-O of the C-iontst'it.uti:on:'e.f India. Since the contention of the learned co_unselfor_ respondent No.1, as soon as, it transgresses into the area, wherein the validity of a law is subject matter of challenge on the issue of allotment of seats , the bar ___é:ontemplated under Article 243-O would prevent us from adjudicating upon the matter It is not necessary to examine this issue, because of the repeated assertion of the learned %***tF~% 28 Counsel representing respondent No.1, that he claims only the enforcement of the provision of law.
23. But then, it is necessary to that during the course of hearing it was the vehenient-.cont'ontio«n of the learned counsel for respioinderity if respondent No.1 desired to»seekviitayhfilingLlwrit 36337 of 2010 Was, to the" as also notation" contemplateiéi.,,uncler:_Syectiori.p162'of the Panchayat Raj Act, read with, by Rotation Rules 1998.', next aspect of the matter, advanced at the handsiiof for the appellant, namely, whether theuappellanlt issuing the impugned Notification dated 0§3.1R1.20'i*0.,h_a.d given effect to "rotation" in the matter of""r.esvervatio'n.."? For the instant determination, we must revert ..5'to the first conclusion arrived at by us hereiiaabpve, namely, that the issue of "reservation", as also "«.""rota_tion", has to commence from the electoral process conducted in the year 2005, based on census operations and determination conducted immediately prior thereto. Based on the aforesaid, it is also necessary to record, that after the Cl"
"flame 29 election process was conducted in the year 2005, the next process of election is the one, which is subject matter of challenge before us (to be conducted in 2010),." issue confronting us is, whether "rotation" has been'giv_e~n__5e:ffec_t to in the instant, second electoral process wi't'hini:thefrtameuworia of Section 152 of the Panchayat:'»Raj:1'Aot, i*with,s,..,R-e;_e 3 let 5 the Reservation by Rotation.__Ruies,l l99i8?},:»,,.._Th.e instant controversy (raised by refers to the reservation in lfiavanegere District.
From the Annexure~B, the learned out to us the number of villagews_,l:tAhialt out of, and also certain other been shifted into Anagodu constitueinov -__thel'evear 2005, which has altered its sub'st.a.n.tially. Hence, in the year 2005, the said VC0fiStit1.1e1'),C}7,VlVlas reserved for Scheduled Caste candidates, during theiiipfesent eiectoral process the said. constituency is reserved: for Schedule Tribe (woman) candidates. We are, "'ii_th_er'efore, satisfied that "rotation" has been given due effect to, in the impugned notification dated 08.11.2010, within the meaning of the proviso under suberule (4) of Rule 3 of the Reservation by Rotation Rules, 1998. . in fact, it was the Cl%«/.'=:Y»..4 \5*W\afi\ emphatic submission of the learned Counsel for the appellant, that not a single reserved constituency has been allotted in the present electoral process, to the saniieireserved category to which it was assigned in the e_l.;e'ctii.oni_s:beheld in 2005. There is therefore no scope for in-« present election process "rotation" hasnbeien Agivenieffec-Vt to in f the matter of "reservation"*as--._hasiib._eenV coniteimplatiediunder the proviso to sub--rule (4) o_f:i"Rule_p 3 of Reservation by Rotation Rules, 1998;
24. Our last' the implementation of "rotatiorii_.in:j_i_tliie."reservation" contemplated under Article::;éi!i3ifiC'i_'D":iJ,1°p "of India is, in affirmation of the subrriissiion behalf of the learned counsel for the {1PP_€.11ant;.iA'Ori abpeirusal of Article 243D aforementioned, itR'weiiiarezlsatisfied, that the matter of providing for "rotation" in ""frese,rv'atioins.'f«in Panchayat elections, has been left to the individual-.idiscretion of State legislatures. The Karnataka Legislature provided for "rotation" in the matter of "freservation" in Panchayat elections, through the proviso '"i.inder sub~»section (3) of Section 162 of the Panchayat Raj Act, and gave effect to it, through the proviso under sub--rule (4) of Rule 3 of the Reservation by Rotation Rules, 1998. We are 31 satisfied, that "rotation" provided for, has been followed in the notifications issued by the State Election Commission.
25. Thus viewed, as a matter of consider.a:tio1a_VVAof the claim of the appellant on merits, we are the determination by the learned Sing1e_Jud,§e'itheviirnptlginedi judgment dated 25.11.2010 is liab:l.éi"to iiibersdfizt The J same is accordingiy set The__~n'otification dated 08.11.2010 is, therefo:re,i"--»..herebyV-lheid to be in consonance with the 1i§royisio.n3s::'of:it1€1CFanchayat Raj Act, as also, the Resevrrfiation by :R¢~§ati1jo'nir~Ru1res,11998. 1 ;.:II'.(;l~f3"}s'.I Yes/ No 1 VEWRQ/Snb