Karnataka High Court
T S Krishnappa vs The State Of Karnataka on 23 November, 2012
Author: S.Abdul Nazeer
Bench: S.Abdul Nazeer
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE S.ABDUL NAZEER
W.P.NOS.41556 TO 41557/2012
C/W W.P.NOS.44091/2012, 42007/2012
& 42145/2012 (LB-ELE)
W.P.NOS.41556-41557/2012
Between :
1 T S Krishnappa
S/O Sannahanmappa,
Aged About 51 Years
Sasvehalli Hobli,
Kumbalur, Honnalli Taluk
Davanagere District
2 Smt Bharathi M S
W/O Chandrappa,
Aged About 42 Years,
Tilak Road, Nyamathi,
Honnalli Taluk,
Davanagere District. .... Petitioners.
(By Sri Ravivarmakumar, Sr. Adv. For Sri K.N.Lingaraju, Adv.)
2
And :
1 The State Of Karnataka
Rep By Its Secretary,
Department Of Panchayat Raj,
M S Builiding, Bangalore-560 001
2 The Director (Panchayat Raj)
And Ex-Office Joint Secretary
Department Of Rural Development
And Panchayathraj, Vidhana Veedhi,
Bangalore- 560 001
3 The Assistant Commissioner
Honnalli Taluk,
Davanagere District
4 The Executive Officer
Taluka Panchayath,
Honnalli Taluk,
Davanagere District-577 215. .... Respondents.
(By Sri K.M.Nataraj, Addl. Adv. General for Sri Vijayakumar
A. Patil, HCGP for R1 to R3)
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W.P.NO.44091/2012
Between :
Sri Rangaiah, S/O Rangadasiah,
Aged About 49 Years,
R/At No.150, Madeshwara Extention,
Kanakpura Town, Ramanagara District,
Member Of Taluk Panchayath,
Elected From Gerahalli Constituency,
Kankapura Taluk,
Ramanagara District-562117 .... Petitioner.
(By Sri T.Seshagiri Rao & Sri Sunil S. Rao, Advs.)
And :
1 The State Of Karnataka
Represented By Its Secretary,
Department Of Rural Development
And Panchayth Raj, Vikasa Soudha,
Bangalore-560001.
2 The Regional Commissioner
II Floor, BMTC Building,
K.H.Road, Shanthingar,
Bangalore-560027
3 The Kanakapura Taluk Panchayath
Rep. By Its Chief Executive Officer,
Kanakapura, Ramanagara Dist-562117. .... Respondents.
(By Sri K.M.Nataraj, Addl. Adv. General for Sri Vijayakumar
A. Patil, HCGP for R1)
4
W.P.NO.42007/2012
Between :
H Shivaprasad
S/O Late Honnalagaiah,
Aged About 61 Years,
Member Taluk Panchayath,
(Elected From Jalamangala Constituency),
Ramanagara Taluk & District-571511. .... Petitioner.
( By Sri. K G Sadashivaiah, Adv.)
And :
1 The State Of Karnataka
Represented By Its Secretary,
Department Of Rural Development & Panchayath Raj,
Vikasa Soudha, Bangalore-560001
2 The Regional Commissioner
II Floor, Bmtc Building,
K.H.Road, Shanthinagar,
Bangalore-560027
3 The Ramanagara Taluk Panchayath,
Represented By Its Chief Executive Officer,
Ramanagara Taluk & District-571511. .... Respondents.
(By Sri K.M.Nataraj, Addl. Adv. General for Sri Vijayakumar
A. Patil, HCGP for R1)
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W.P.NO.42145/2012
Between :
Sri L R Mahadeva Swamy
S/O L. Rajanna
Aged About 28 Years
Member Of Mysore Taluk Panchayat,
Lalitadripura, Mysore-571124. .... Petitioner.
(By Sri MGS Kamal, Adv. For for M/s Kamal & Banu, Advs.)
And:
1 The State of Karnataka,
Department of Rural Development and Panchayat Raj,
reptd. By its Secretary,
Vidhana Soudha,
Bangalore - 560 001.
2 The Deputy Commissioner
Mysore District-571124
3 The Assistant Commissioner
Mysore Sub-Division
Mysore-571124. .... Respondents.
(By Sri K.M.Nataraj, Addl. Adv. General for Sri Vijayakumar
A. Patil, HCGP for R1 to R3)
---
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These Writ Petitions are filed under Articles 226 & 227 of
the Constitution of India, praying to quash the impugned
notification dated 29.9.2012 issued by the second respondent, etc.
These Writ Petitions coming on for Final Hearing this day,
the Court passed the following:
ORDER
Since common questions of fact and law are involved in all these writ petitions, they are clubbed together, heard and disposed of by this common order.
2. In these cases, the petitioners have sought for quashing the notification bearing No.GRA.A.Pa.227.Gi.Pa.Sa.2012(11) dated 29.9.2012 at Annexure 'A' issued by the second respondent in so far as reservation made to the post of Adhyaksha and Upadhyaksha in the Taluk Panchayaths under the provisions of the Karnataka Panchayath Raj Act, 1993 (for short 'the Act') and Karnataka Panchayat Raj (Reservation of Adhyaksha and Upadhyaksha of Taluk Panchayath) Rules, 2005 (hereinafter 7 referred to as 'the Rules').
3. In W.P.Nos.41556 to 41557/2012, the petitioners are challenging the notification at Annexure 'A' in so far as reservation made to the post of Adhyaksha and Upadhyaksha in the Taluk Panchayat of Davanagere District and for a direction to the respondents to reserve the post of Adhyaksha and Upadhyaksha of Honnali Taluk Panchayath to Scheduled Tribe category in the ensuing election. The contention of the petitioners is that the 4 th respondent-Taluk Panchayat consists of 21 members, out of which 11 seats were reserved for General Category and in that 5 seats were reserved for General Women and 4 seats were reserved for Scheduled Caste Category and in that 2 seats were reserved for Scheduled Caste Women category and 2 seats were reserved for Scheduled Tribe category and in that 1 seat was reserved for Scheduled tribe Women category, another seat reserved for Scheduled Tribe Men Category and 3 seats were reserved for 8 Backward Class-A category in which 2 seats had been reserved for Backward Class-A Women Category. Pursuant to the election held to the Honnali Taluk Panchayat, 11 members were elected from Congress Party, 9 members from Bharathiya Janatha Party and one member from independent. The petitioners are fully eligible and qualified to contest to the post of Adhyaksha and Upadhyaksha of the Panchayath. It is further contended that the office of Adhyaksha and Upadhyaksha in the Taluk Panchath has never been reserved or allotted for the Scheduled Tribe Category since the inception. In respect of the previous term, first petitioner has challenged the reservation for the post of Adhyaksha , which was reserved for BCA(W) in W.P.No.6915/2011. This Court while striking down various provisos to Rule 5 has observed various illegalities in the rotation of reservation for the post of Adhyaksha and Upadhyaksha for the Panchayath.
4. In W.P.No.44091/2012, the petitioner has challenged the 9 notification referred to above in so far as reserving the post of Adhyaksha and Upadhyaksha of the Kanakapura Taluk Panchayath, Kanakapura, Ramanagara District. It is contended that the petitioner is member of Taluk Panchayath-third respondent got elected by virtue of the election held on 26.10.2010. Apart from him, 24 other members were elected from the National Congress Party. As such, the strength of Congress is 25 as against 30 members. As per the notification dated 25.1.2011, the first respondent has reserved the seats for the post of Adhyaksha and Upadhyaksha of the Taluk Panchayath for Scheduled Tribe Women and the seat for Upadhyaksha was reserved for BCM (B). Thereafter, the suitable candidates were elected as per the reservation made by the first respondent on a rotation basis w.e.f. 25.1.2011. The first respondent has issued a notification dated 29.9.2012 reserving the post of the Adhyaksha for the Panchayath to BCM(A) Women. According to him, having reserved the post of Adhyaksha in the election held on 26.2.2011 to Scheduled Caste 10 Women, once again reserving the said post to BCM (A) Women is contrary to law and that it should have been reserved to Backward Caste (A).
5. In W.P.No.42007/2012, the petitioner has challenged the notification in so far as reservation of the post of Adhyaksha of Ramanagara Taluk Panchayath. According to him, in the notification dated 25.1.2011, the office of Adhyaksha was reserved for General Women and the seat of Upadhyaksha was reserved for Scheduled Tribe Women. Therefore, it should not have been once again reserved for General Women. On the contrary, it should have been reserved for General Category.
6. In W.P.No.42145/2012, the petitioner has challenged the notification reserving the post of Adhyaksha of Mysore Taluk Panchayath to General Women Category.
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7. The State has filed its objections in W.P.Nos.41556 to 41557/2012 and adopts the same in the other cases also. It is contended that while reserving the post of Adhyaksha and Upadhyaksha in exercise of the power conferred under Section 138(2) of the Act and the Rules made thereunder, they have strictly followed the provisions of Article 243-D of the Constitution. It is further contended that out of 176 posts 32 posts are reserved for Scheduled Caste and among those 32 seats, 16 seats are reserved for Women and 15 seats are reserved for Scheduled Tribe and out of 15 seats, 8 seats are reserved for Women, who belong to Scheduled Tribe, 33 seats are reserved for Backward Community 'A' category and out of that, 17 seats are reserved for Women belonging to Backward Community 'B' Category. 88 seats are kept in unreserved category and out of 88, 44 seats are reserved for Women in unreserved category. These reservations have been done keeping in mind different facts and criteria like seats should be 12 allotted to Scheduled Tribe and then to Scheduled Caste on the basis of their respective population in the entire State as State is taken as one unit for determining their population. While issuing the reservation roster, the State Government has kept in mind the population census of 2001 issued by the Census Department. After allotting the seats to the Scheduled Tribe and Scheduled Caste, the seats will be reserved for Backward Category 'A' and Backward Category 'B'. It is further contended that providing reservation to different categories referred to above shall not exceed 50% of the total number of seats. The State Government has prepared a chart of allotment of reservation of different Taluks of the State and to different categories mentioned therein to the posts of Adhyaksha and Upadhyaksha of the respective Taluks. While preparing the reservation chart, the State has to keep in mind that out of the reserved and unreserved categories, 50% of the reservation has to be provided for Women as it is a vertical reservation within those categories. There was only 33% of reservation provided to the 13 Women Category and by amendment, the reservation for Women is enhanced from 33% to 50% and necessary amendment is brought to Section 138(2)(c) and relevant Rules. Yet another amendment was brought by the State Government under Rule 5 of the Rules w.e.f. 21.12.2010 making State as one unit for determination of the population of persons belonging to Scheduled Tribe and Scheduled Caste. The respective District is taken as a Unit/basis for determination of population of those categories and on that basis, fixation of reservation to the posts of Adhyaksha and Upadhyaksha is to be done. After bringing amendment to Rule 5, this is a second term election to the posts of Adhyaksha and Upadhyaksha to the Taluk Panchayath in the State. It is further contended that already election to the posts of Adhyaksha and Upadhyaksha in the entire State is almost completed and in only few Taluks, elections are yet to be completed. In more than 160 Taluks, election to the post of Adhyaksha and Upadhyasha have been completed and if the above petitions are entertained and allowed, it will have a cascading effect 14 on other Taluks where elections are already over. Further, it would amount to providing excess reservation to the respective categories which would be contrary to the provisions of law and the constitutional mandate.
8. It is further contended that the reservation of seats by following the roster was required to commence from 1995 in view of the explanation given to Section 138. Accordingly, reservation roster had commenced and the reservation notified now is for 11 th term. While allotting reservation in favour of various posts, care has been taken to see that all local bodies get the seat according to the reservation policy as spelt out under the Act and the Rules made thereunder. In W.P.No.5873/2011 and other connected matters, proviso to Clause 5(b), (d) and (e) have been struck down. In view of the said order, while making reservation to the posts as notified in the impugned notification, the order of this Court has also been kept in mind. The reservation now notified does not 15 violate the provisions of the Act and the Rules.
9. Sri Ravivarma Kumar, learned Senior Counsel appearing for the petitioners in W.P.Nos.41556 to 41557/2012 contends that the notification issued by the second respondent is not in consonance either with Section 138 of the Act nor is it in conformity with Article 243-D of the Constitution of India. He has taken me through the observations made by this Court in W.P.No.5873/2011 and other connected matters (between N.KOTRESH AND OTHERS VS. THE STATE OF KARNATAKA AND OTHERS) disposed of on 14.2.2011 and submits that rotation has not been made in the manner which would give candidates of each categories opportunity to hold the post of Chair person. In fact, this Court found fault with the notification issued for the 10th term. This Court has directed the State for redoing the entire reservation for the 11 th term in conformity with law. The State Government has failed to obey the directions of this 16 Court. It is contended that time and again this Court has directed the State Government to redo the entire rotation in accordance with law, which has not been complied with by the State. In respect of Honnali Taluk Panchayath of Davanagere District is concerned, reservation of the post of Adhyaksha and Upadhyaksha in favour of Scheduled Caste Women and Backward Caste (A-W) is illegal. It ought to have been reserved in favour of a member elected from Scheduled Tribe Category.
10. Similar submissions have been made by the learned Counsel for the petitioners in other writ petitions. It is contended that the reservation made in each of the Taluk Panchayaths is illegal.
11. On the other hand, learned Additional Advocate General appearing for the State submits that the writ petitions are premature. If the petitioners are aggrieved by the election, they 17 have to approach the Civil Court for appropriate reliefs. Secondly, it is submitted that the process involved in making the reservation is elaborate and complicated. With great care and caution, the authorities have prepared the list after examining several permutations and combinations. Reservation and rotation of seats has been notified by the State taking into account the change in number of Taluks and Districts, declaration of population figures from time to time, change in SC/ST ranking of Taluks, amendment to Section 138 of the Act making reservation in favour of women from 33% to 50%, the judgment rendered by the Hon'ble Supreme Court in K.KRISHNAMURTHY' (DR.) AND OTHERS VS.
UNION OF INDIA AND ANOTHER - (2010) 7 SCC 202, the effect of striking down of proviso to the Rules by this Court in W.P.No.5873/2011 and other connected matters disposed of on 14.2.2011, amendment to 2005 Rules making State as an unit for the purpose of rotating the reservation of seats to the office of Adhyaksha and Upadhyaksha. Despite the best efforts, certain 18 lapses have been committed on the part of the State in issuing the notification. It is submitted that out of 176 local bodies, elections have already been over in more than 160 local bodies. At this stage, if the notification to the extent of its challenge is quashed, it will have a cascading effect. It is further submitted that in view of various other developments referred to above, it is practically impossible to make reservation with mathematical precision or accuracy. The only solution to the problem is to bring about suitable amendment to the Act and Rules and that such an amendment will be proposed by the respondents.
12. It is clear from the materials on record that out of 176 local bodies, elections to 160 local bodies have already been conducted. This Court in N.KOTRESH's case (supra) has directed to set right the rotation of reservation prospectively. But the learned Additional Advocate General's contention is that the Act itself has to be amended in view of certain developments that have taken 19 place which has a bearing on the reservation of rotation of seats. The affidavit filed on 22.11.2012 is as under:
"3. I say that in order to maintain transparency in giving an opportunity to the parties aggrieved by the notification, notifying the reservation of seats, such notification will be published well in advance i.e. atleast 45 days before the expiry of term of office of the Adhyaksha and Upadhyaksha of Taluk Panchayaths.
4. I say that Section 138 of the Karnataka Panchayat Raj Act provides reservation for the offices of the Adhyaksha and Upadhyaksha of Taluk Panchayats.
5. I say that certain developments have taken place which have bearing on the reservation and rotation of seats to be notified by the State i.e. (i) change in number of Districts; (ii) change in number of Taluks; (iii) declaration of population 20 figures from time to time; (iv) change in SC/ST ranking of taluks; (v) amendment to Section 138 of the said Act, making reservation in favour of women from 33% to 50%; (vi) the judgments rendered by the Hon'ble Supreme Court in Dr.Krishnamurthy's case reported in 2010, Section 202 and also the order dated 14.2.2011 passed by Hon'ble Court in W.P.No.5873/2011 and connected writ petitions; (vii) effect of striking down of proviso to the Karnataka Panchayat Raj (Reservation to the Offices of the Adhyaksha and Upadhyaksha of the Taluk Panchayaths) Rules, 2005 and (viii) amendment to 2005 Rules, making State as an unit for the purpose of rotating the reservation of seats to the offices of Adhyaksha and Upadhyaksha.
6. In view of these factors and also various other factors viz., the cascading effect of various actions committed earlier or of giving effect to the provisions of the Act, it is practically impossible to make reservation with mathematical precision 21 or accuracy."
13. If the State is directed to redo the reservation of rotation at this stage, it will have a cascading effect as the election to 160 local bodies out of 176 local bodies have already been over. Therefore, keeping in view the law declared by this Court in N.P. PONNUSWAMI VS. RETURNING OFFICER, NAMAKKAL CONSTITUTENCY, NAMAKKAL, SALEM DISTRICT AND OTHERS - AIR 1952 SC 64, this Court cannot interfere with the notifications at this stage. Petitioners have to avail the alternative remedy available to them in law for challenging the election. It should also to be noted here that having regard to the various factors, it may not be possible to make reservation with mathematical precision and accuracy. As long as there are legitimate considerations in the matter of rotating the reservation, some deviation allowing some flexibility in the joints is permissible. In this connection, it is beneficial to notice the 22 observations of this Court in SMT. REKHA PARASHURAM KATTIMANI VS. STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, RDPR DEPARTMENT AND OTHERS -
ILR 2009 KAR 3656, which is as under:
"34. Reservation of seats to the 29 Zilla Panchayaths is not the subject matter in these petitions, but its rotation to the office of Chairpersons, being Adhyaksha and Upadhyaksha of the 29 Zilla Panchayaths.
Applying the aforesaid principle that the provision in the Constitution indicating proportionality of representation as necessarily being a broad, general and logical principle and the inherit systematic deficiencies, and not intended to be expressed in mathematical precision, and not a declared basic requirement in each and every part of the territory of India, it cannot be said that rotation of the reservation too should be effected by mathematical precision. As observed supra, accommodations 23 and adjustments having regard to political maturity, awareness and degree of political development in different parts of India, might supply the justification for deviation, to some extent, in the matter of rotation while ensuring as far as may be no repetition. The differing in criteria, and the increase in the number of Districts, supra, do not justify standards based on mathematical accuracy. So long as there are legitimate considerations in the matter of rotating the reservation, some deviation, allowing some "flexibility in the joints", in my opinion, is permissible. I say so, also, keeping in mind the fact that census of backward classes, is unavailable and hence there is neither criteria, or foundation for rotating the reservations to the Chairpersons, for the said class. The suggested criteria such as alphabetical order of the names of the different District; reckoning the population figures by excluding the Scheduled Caste and Scheduled Tribe; and drawing of lots, to provide reservation by way of rotation to 24 Backward classes, I am afraid none pass the test of rationality of reasonableness to qualify acceptance."
14. As undertaken by the State, it has to set right the rotation of reservation atleast for the next term well in advance or in the alternative take steps to amend the Act and the Rules in accordance with law. Writ petitions are dismissed with liberty to challenge the elections by filing election petitions before the Competent Court . No costs.
Sd/-
JUDGE.
BMM/-