Karnataka High Court
Surendra Babu vs State Of Karnataka And Others on 29 January, 1996
Equivalent citations: AIR1996KANT339, ILR1996KAR1797, 1996(3)KARLJ168, AIR 1996 KARNATAKA 339, (1996) ILR (KANT) 1797 (1996) 3 KANT LJ 168, (1996) 3 KANT LJ 168
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER Rajendra Babu, J.
1. The Constitution of India was amended so as to introduce into it Part IX and IXA by Constitution (73rd and 74th Amendment) Act, 1992 to provide local self-Government a status of constitutional entity and to regulate certain main provisions such as Constitution, composition, reservation of scats, qualification for membership, financial relations and elections thereto.
2. Pursuant to the said amendments to the Constitution, the Karnataka Municipal Corporations Act, 1976 came to be amended to bring the same in conformity with the said constitutional amendments. In part IX A of the Constitution, Municipalities are dealt with. Article 243 provides that there shall be constituted in every State - (i) a town Panchayat for a transitional area i.e., an area in transition from a rural area to an urban area (ii) a Municipal Council for a smaller urban area; and (in) a Municipal Corporation for a larger urban area. Such Municipality is constituted as the Governor may, having regard to (a) the size of the area (b) the Municipal services being provided or proposed to be provided by an industrial establishment in that area; (c) population of the area (d) density of the population (e) revenue generated for local administration (1) the --percentage of employment in non-agricultural activities, and (g) the economic importance or such other factors as he may deem fit, specify by public notification tor the purpose of this Part of the Constitution. Article 243-ZA deals with the elections to Municipalities and provides for superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243K and that subject to the provisions of the Constitution, the Legislature of the State is empowered to make provisions with respect to all matters relating to or in connection with the elections to the Municipalities. Article 243 ZG bars the interference of the Courts in electoral matters. It provides that notwithstanding anything in that regard in the Constitution, in respect of -- (i) validity of any law relating to the delimitation of constituencies or allotment of scats to such constituencies, made or purported to be made under Article 243 ZA shall not be questioned in any Court; (ii) no election to any Municipality can 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 the State.
3. By Act 35/1994 certain amendments have been made to the Karnataka Municipal Corporations Act and Chapter IV of the Act deals with elections to the Municipal Corporation, Section 21 provides, for the purposes of elections to councillors, Government shall, by notification, determine the wards into which the city shall be divided and the extent of each ward; the number of seats allotted to each ward and reserved for SC/ ST, backward classes and women and the wards in which such seats shall be reserved. Section 21(1A) provides that a notification issued under Section 21 cannot be called in question in any Court of law.
4. It is now contended on behalf of the petitioner that Article 243ZG barring the jurisdiction of Courts to examine the validity any law relating to the delimitation of constituencies or allotment of scats to such constituencies as unconstitutional on the ground that the provisions of the Constitution introduced by amendment must be in conformity with the basic features of the Constitution and the judicial review is a basic feature in the Constitution, with the consequence that the provision barring such judicial review is invalid. It is contended that these propositions are available in the decisions of the Supreme Court in His Holiness Kesavananda Bharathi Sripadagalavaru v. State of Kerala, Bar Council of Delhi v. Surjeet Singh, ; Minierva Mills Ltd. v. Union of India, ; R. C Poudyal v. Union of India. In Kesavananda Bharathi's case, the Supreme Court took the view that by virtue of the power to "amend" conferred by Article 368, Parliament could not alter the 'basic structure' or 'fundamental features' of the Constitution because the word "amend" implied that even after amendment, by way of addition, alteration or repeal of some of its provisions, the identity of the original constitution must remain. One of these basic features is 'Judicial review'. In that case, the second part of Article 31C introduced by the Constitution (25th Amendment) Act, 1971 was struck down on the ground that it made the Legislature the final authority to determine whether the law made by it self was a law made to give effect to a directive principle specified in Article 31C, and thus totally barred the Courts from exercising power of judicial review to enquiry whether a particular Act which was sought to be shielded under Article 31C. was, in fact, enacted for the object of implementing a Directive or for some other extraneous purpose. Article 31C was struck down in Kesavananda Bharathi's case on the ground that it conferred the legislature not only to make a law violative of Articles 14, 19 and 31, but also conferred on it the power to make it immune from attack on that ground by itself inserting in that law a declaration. In view of the decision in Kesavananda Bharathi's case, if it be shown that any particular Constitution Amendment Act does something more than to amend, it would be ultra vires of the power conferred by Article 368 and in that event the Court would be bound to strike it down notwithstanding any clause excluding the jurisdiction of the Court. Therefore, what requires to be examined now is -- (i) whether in the present case there is any amendment to the Constitution affecting the basic feature of the Constitution; or (ii) whether such amendment bars judicial review which is a basic feature of the Constitution.
5. The question whether in electoral matters there can be bar of jurisdiction of the Courts specifically arose for consideration in Smt Indira Nehru Gandhi v. Raj Narain, . In that decision Chief Justice Ray did not specifically deal with this aspect of the matter, while Beg, J., stated (at para 52) that judicial review in election disputes is not a compulsion. Judicial review of decisions in election disputes may be entrusted by law to a Judicial Tribunal; Khanna, J., observed that (para 207) it is not necessary in a democratic set up that disputes relating to the validity of the elections must be settled by Courts of law; Chandrachud, J. at paras 667-670, made a detailed reference to these matters. While referring to the arguments that judicial review is a part of the basic feature of the Constitution and since the 39th Amendment by Article 329A(4) and (5) deprived the Courts of their power to adjudicate upon the disputed election, the amendment is unconstitutional, it was observed that the fundamental premise of this principle is too broadly stated. The Constitution, as originally enacted, expressly excluded judicial review in variety of milters such as Articles 31(4), 31(6). 136(2), 227(4), 262(2) and 329(a). These provisions would indicate that the Constitution did not regard the judicial review as an indispensable measure of the legality or property of every determination. The provisions contained in Articles 103(1), 329(b) and 102 prescribe for disqualification of membership of the Parliament. By Article 103(1), any question arising under Article 102 as to whether a member of the Parliament has become subject to any disqualification has to be referred to the President whose decision is final. The President is required by Article 103(2) to obtain the opinion of the Election Commission and act according to its opinion. Thus, in vital matters pertaining to the election for membership of the Parliament, the framers of the Constitution had left the decision to the judgment of the executive. Articles 327 and 323 give power to the Parliament and the State Legislatures to provide by law for all matters relating to elections to the respective legislatures including the preparation of electoral rolls and the delimitation of con-stituencics. By Article 329(a), the validity of any law relating to the delimitation of constituencies or allotment of seals to such constituencies cannot be called in question in any Court. The provision contained in Article 329(b) is decisive on the question under consideration. That Article provides that no election to the Parliament or the State Legislature shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. It was therefore open to the Legislature to leave the adjudication of election disputes to authorities other than those in the heirarchy of our judicial system. Since Constitution, as originally enacted, did not consider that judicial power must intervene in the interests of purity of elections, judicial review cannot be considered to be a part of the basic feature in so far as the legislative elections are concerned. The theory of basic structure has to be considered in each individual case, not in (he abstract, but in the context of the concrete problem. The problem in the present case is whether under our Constitution, judicial review was considered as an indispensable concomitant of elections to the State's Municipalities.
6. If as observed by the Supreme Court in the opinion of Beg, J., Khanna, J., and Chandrachud, J., that judicial review in an election matter is not an essential feature and election disputes need not necessarily be decided by Courts, it was stated that in matters like delimitation of constituencies, the law relating thereto or the alteration of seats thereof should not form subject matter of judicial review. The precise question as to the power of delimitation of constituencies and the interference by Courts thereof fell for consideration in Meghraj v. Delimitation Commission, . It was argued in that case that every order of the Commission made under the Act shall be final and conclusive and such an order of the Commissioner cannot be questioned either by the High Court under Article 226 or the Supreme Court in appeal thereof. The Court, in considering the question whether any law relating to the delimitation of constituencies could be called in question in any Court being a bar under Article 329(AL) the same cannot be called in question before the Courts. However, it was noticed, with reference to a provision similar to Section 21(1A), the same would not be saved merely because of the use of the expression "shall not be called in question in any Court". But, if by publication of the order in the Gazette of India, it is to be treated as law made under Article 327 and Article 329 would prevent investigation by any Court of law. Thus, it must be stated therein that though the constitutional bar applies, it will not take away the right of the Courts in examining the effect of the notification issued under Section 21 of the Act, if such notification cannot be traced to Article 243ZA. Therefore, on the basis of the authority.of the decision of the Supreme Court in , it must be held that barring the jurisdiction of the Court in matters of delimitation of constituencies or allotment of seats thereto by Article 243ZG does not affect the basic features of the Constitution.
7. This matter can be examined from another angle. Articles 79 and 168 provide for the Constitution of Lok Sabha and Vidhan Sabha. Under Entry 5 of List II of Ihe VII Schedule to the Constitution, law could be made by the State Legislature in relation to constitution of a Municipal Corporations and other Municipalities or other local authorities. For the first time under the Constitution, a Municipal authority was sought to be constituted as aconstitutionai entity by virtue of Article 243Q. By the same amendment, provisions were made for composition of Municipalities which provided for direct elections from the territorial constituencies in the municipal area and for this purpose each municipal area shall be divided into territorial constituencies to be known as 'wards'. The power to form the municipal areas and the divisions thereof into territorial constituencies also arose by the said amendment. Similarly, the provisions as contained in Article 243ZG to which we have already made reference, also was introduced. Similar are the provisions arising under Articles 81 and 84 pertaining to Lok Sabha and the right to be included in the electoral roll and the concept of 'Adult Suffrage' introduced by Article 325 and 326. Even so. Article 329A Barred the jurisdiction of Courts in examining the validity of laws relating to delimitation and allotment of seats. When the entire concept of local authority being made a constitutional entity -- elections thereto; reservations, and also making provisions for delimitation of constituencies, prohibiting interference by Courts etc., is one package. If under one package the entire set up is introduced in the Constitution, could it be said that such a provision would offend the basic feature of the Constitution? If the existing provisions of the Constitution enable examination of a matter by Courts and such examination is barred by further amendment, perhaps the petitioner is right in his submission that such a course would offend the basic feature of the Constitution. In case where for the first time a right is granted and that right is controlled by other provisions which bar the judridiction of the Courts, we do not think the basic feature of the Constitution is affected.
8. We cannot merely proceed to analyse this matter on the doctrine of 'Separation of powers' for in the Indian Constitution 'separation of powers' does not fall in water-tight compartments as we have referred to several provisions of the Constitution wherein the interference of the Courts is not permitted or specifically barred. Therefore, the principle of doctrine of 'Separation of Powers' also cannot be of any avail to the petitioner in this cas,e. Thus, we are of the view that in this case the basic features of the Constitution are not affected by Article 243ZG which bars interference of Courts in electoral matters and the said provision is not therefore ultra vires the Constitution, Hence, we reject the first contention urged on behalf of the petitioner.
9. The second contention urged is that Section 21(1A) of the Karnataka Municipal Corporations Act is invalid. We have adverted to the decision of the Supreme Court in Meghraj's case, which deals with an identical provision arising under the Delimitation Act to which we have adverted to earlier. We have already upheld Article 243ZG as valid which bars the interference of Courts in matters pertaining to delimitation of wards or allotment of seats. Under the Delimitation Act enacted which pertains to the delimitation of constituencies in relation to Parliament, the Court examined the scope of the matter and stated that notwithstanding the limitation arising under Article 329(A) unless such notification is deemed to be law for purpose of Article 243ZA. Article 243ZG would not prevent investigation by any Court of law. Therefore, it is unnecessary to strike down this provision even assuming that the contentions advanced on behalf of the petitioner may be correct, as the scope is limited. If the notification issued for delimitation of the constituencies and allotment of seats thereof is a law arising under Article 243ZA, the same cannot be called in question in view of Article 243ZG. If that is so, the provisions arising under Section 21(1A) is superfluous as it merely gives effect to the provisions of the Constitution to which we have made reference just now. If it exceeds that scope or falls short of the same in meeting the requirements thereof, a notification issued thereunder can certainly be examined as to its validity. Thus, the second contemipn raised on behalf of the petitioner is also rejected. In any event, we cannot hold that Section 21-A of the Act is invalid.
10. The third contention raised is as to the scope of provisions of Sections 3 and 4 of the KMC Act regarding the formation of the Bangalore Municipal Corporation area after the Act came into force. This very question fell for consideration before this Court in Writ Petition No. 39913/1995 and connected matters, and a Division Bench of this Court held that there is discernible difference between the provisions of Sections 3 and 4 of the Act; that Section 3 confers power on the Governor to specify the areas, while Section 4 provides for inclusion and exclusion of areas for the purpose of larger urban area; that the scope of two sections is different and distinct and so also the requirement for exercise of powers. The notification in question was held to be one issued under Section 3 of the Act. Relying on the observation that the impugned notification does not include within the limits, of larger urban area and areas set-out in Schedule A to the notification, it is contended that there is no inclusion of areas into the Municipal Corporation area in Bangalore and therefore the formation of the Bangalore Corporation area is not complete. This argument, in our view, is plainly misconceived. This Court while examining the scope of Sections 3 and 4 and the notification issued u/S. 3 stated that in order to distinguish between Sections 3 and 4, made it clear that the impugned notification merely specifies the area to be larger urban area, but that does not mean that it does not include those areas in the larger urban area. What was meant to be stated by this Court was that by the notification, no area was included or excluded and what was done is mere specification of the area. Therefore, we do not think the learned counsel is right in contending that certain areas have been included without appropriate notification. The argument that unless Notification under Section 4 is issued, no action could be taken to hold elections is once again plainly misconceived. It is only after the formation of larger urban area as specified u/S. 3, the question of inclusion or exclusion would arise under Section 4. It is after specifying an area, if the Governor feels that new areas have to be added or excluded, action under Section 4 will have to be taken and not before. Therefore, compliance with Section 4 in this case does not arise at all. For the first time after the Act came into force, a larger urban area has been specified by the Governor. In that view of the matter, we find no merit in the third contention either.
11. The petitioner is not in a position to point out that any of the areas in the now notified as wards, falls outside these areas. On the other hand, they concede that all the wards fall within the area specified under Section 3 of the Act. We have held that the formation of the wards or allotment of seats thereto cannot be questioned in the Court in view of the bar under Article 243ZG. However, one aspect will have to be noticed. In the Delimitation Act a specific machinery is provided for collecting necessary data before the constituencies are notified. In this case, we could see that no machinery is provided under the Act and each time the State Government itself will have to make such an exercise. It would be more appropriate if an identical machinery is provided under the Act and action taken to delimit the various wards in any urban area, larger or similar, so as to avoid any grievances being made thereof.
12. The next contention urged is that the wards have not been properly made in terms of the Act nor boundaries thereto have been specified. In order to satisfy ourselves whether there is due compliance with the provisions of the Act itself, we examined the matter. If there is no compliance of the provisions of the Act itself, the same would amount to ultra vires of the Act and would necessarily become the subject-matter for examination of this Court. We have looked into the notifications and the notifications have been issued demarcating the boundaries of each one of the wards and those wards demarcated have also been marked out in a map or sketch along with the electoral rolls prepared for different regions. Therefore, the contention urged on behalf of the petitioner that the formation of the wards is wholly inappropriate and plainly contrary to the provisions of the Act, cannot be sustained.
13. It is next urged that there are several mistakes in the electoral rolls. But, during the pendency of these proceedings elections notified have been countermanded and it is also reported that the electoral rolls are sought to be revised and the same would be published in 1996. Therefore, we cannot examine the matter uless the appropriate electoral rolls are published and the same could be bifurcated appropriately with reference to different wards. This contention has also therefore needs to be rejected.
14. For the aforesaid reasons, we dismiss this petition. Rule discharged.
15. Petition dismissed.