Karnataka High Court
Nagaraju P vs The Deputy Commissioner on 17 August, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION Nos.36965-966/2017 (LB-ELE)
BETWEEN:
1. NAGARAJU P
AGED ABOUT 60 YEARS
S/O LATE PUTTASUBBAPPA
R/O MARIYALA VILLAGE & KASABA HOBLI,
CHAMARAJANAGAR TALUK,
CHAMARAJANAGAR DISTRICT - 571 313
2. SMT.M.SUGUNA
AGED ABOUT 45 YEARS
W/O LINGAPPA
R/O MARIYALA VILLAGE & KASABA HOBLI
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT - 571 313.
... PETITIONERS
(BY SRI:H C SHIVARAMU, ADV)
AND:
1. THE DEPUTY COMMISSIONER
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313.
2. THE CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYATH
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR - 571 313.
Date of order:17.08.17 in WP Nos.36965-66/17
Nagaraju P & another Vs. The Deputy Commissioner and Others
2
3. THE SENIOR DIRECTOR FOR
HORTICULTURE AND ELECTION OFFICER
ZILLA PANCHAYATH
BADANAKUPPE VILLAGE PANCHAYATH
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT - 571 313.
4. THE SECRETARY/CHIEF EXECUTIVE OFFICER
VILLAGE PANCHAYATH
BADANAKUPPE
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT - 571 313
5. THE EXECUTIVE OFFICER
TALUK PANCHAYATH
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT - 571 313.
... RESPONDENTS
(BY SRI:D R ANANDEESHWARA, HCGP)
THESE WPs ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTICE DATED 10.08.2017 ISSUED BY THE
RESPONDENT NO.2 VIDE ANNEXURE-C AND ISSUE WRIT
OF MANDAMUS TO THE 1ST, 3RD AND 5TH
RESPONDENTS TO HOLD ELECTION TO THE POST OF
PRESIDENT OF RESPONDENT NO.4 PANCHAYATH DUE
TO THE DEATH OF ELECTED MEMBER VIZ., NAGESH
AND ISSUE A WRIT OF MANDAMUS TO THE 1ST AND
5TH RESPNDENTS TO CONSIDER THE APPLICATION
DATED 4.7.2017 AND 4.8.2017 FILED BY THE
PETITIONERS AND OTHERS AT ANNEXURE-B AND B1 TO
HOLD ELECTION TO THE VACANT POST AND ETC.,
THESE WPs COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
Date of order:17.08.17 in WP Nos.36965-66/17
Nagaraju P & another Vs. The Deputy Commissioner and Others
3
ORDER
Mr.H C Shivaramu, Adv for Petitioners. Mr.D R Anandeeshwara, HCGP for Respondents.
1. The prayer made in the present petitions are as follows:
"i) issue a writ of certiorari or similar writ or order or direction to quash the notice dated 10.08.2017 issued by the third respondent in No.Ba/Gra Pum.Election/2017-
18 at Annexure-C;
ii) issue writ of mandamus to the first, third and fifth respondents to hold election to the post of President of fourth respondent Panchayath due to the death of elected member viz., Nagesh;
iii) issue a writ of mandamus to the first and fifth respondents to consider the application dated 04.07.2017 and 04.08.2017 filed by the petitioners and others at Annexures-B and B1 to hold election to the vacant post; and
iv) issue any other appropriate writ or order or direction to the respondents deemed fit Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 4 in the circumstances of the case including payment of cost in the interest of justice and equity."
2. These petitions are squarely covered by the decision of this Court in the case of Smt.Latha and Others Vs State of Karnataka and Others in WP Nos.22740-22762/2016 dated 06.02.2017, which are quoted below for ready reference:
"27. The superior and pervasive impact of constitutional bar cannot be allowed to be breached under the guise of wide judicial discretion and jurisdiction available under Article 226 of the Constitution of India. Such temptation to exercise extra-ordinary jurisdiction under Article 226, should take a backseat to maintain the higher constitutional objectives of keeping the election process insulated and free from court interference, as contained in Article 243-O of the Constitution of India.
28. The fact that despite judgments on earlier occasions by this Court to the State Government to keep sufficient time-gap between Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 5 the issuance of draft Notifications fixing such reservations and final Notifications, allowing the aggrieved persons to raise objections and considering the same fairly and objectively before issuing Final Notification for fixing such reservations though ought to have been followed and which prima facie in the present case also appears to have not been followed by the State Government, but that is not sufficient and strong enough a reason to upset the entire election process for the post of 'President' and 'Vice- President' of all the Zilla Panchayats and it is only for the State itself which is also equally bound by the judgments of the Court to fairly and genuinely comply with those directions in true letter and spirit.
29. One would have expected in such cases for fixing the category-wise reservations for the post of 'President'. and 'Vice-President' of Panchayats at the same time, when the elections for Members itself is initially announced, so that the objections, if any, for that could be well raised in time and considered by the competent authorities in the State Government and it would have been much better if the objections are decided by a speaking and reasoned quasi-
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 6 judicial order by such competent authorities in a transparent manner before the final Notifications fixing the reservations are issued and still leaving a reasonable time for the aggrieved persons to seek judicial scrutiny of such quasi- judicial orders, deciding the objections well ahead of the commencement of the election process itself. But at the fag-end of such time period or just before the commencement of the election process or after the commencement of the election process, no such judicial scrutiny can be undertaken and in the considered opinion of this Court, the bar under Article 243-0 would get attracted in such cases.
30. There is an imminent need of passing a quasi-judicial order complying with the principles of natural justice, deciding the objections against the reservations proposed to be made under 2005 Rules as amended from time to time much ahead of holding these elections for the post of President & Vice president of Panchayats, which orders alone can be made subject to judicial scrutiny much prior to the issuance of the final Notification, fixing seat reservations, in exercise of subordinate legislative exercise, which is beyond the judicial Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 7 scrutiny by virtue of bar under Art.243-O of the Constitution of India. This exercise should be undertaken at the time of initiating the steps for holding the elections for the membership of Panchayats themselves. The true democratic process with transparency is the tenet of free & fair elections, which is the constitutional ethos of our Republic.
31. In the present case, no such order of the Principal Secretary to whom such objections were addressed by the petitioners has been produced before this Court, so as to examine the correctness of the reasons assigned by the State Government for not fixing the reservations for these posts strictly in accordance with the Rules on the basis of the category-wise population figures and previous reservations on a rotation basis as explained from time to time by this Court, that is, once a seat has been fixed for a particular category, that rotation has to be carried for that category for all the Zilla Panchayats in a cyclical manner to complete the circle before such reservation again comes back to that particular Zilla Panchayat.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 8
32. However, it is again clarified that except examining the validity of such a quasi- judicial order passed by the competent Authority of the State Government deciding such objections, no interference can be made in the election process under the Act of 1993 by Courts in view of Article 243-O of the Constitution of India.
33. Therefore, it is for the State Government to provide sufficient time-gap between notifying the draft reservations for these posts and receiving objections, if any, and passing such quasi-judicial orders as stated above and then issue the final Notification for commencement of the election process for these posts, under the Act of 1993.
34. The decision of the objections at a point of time just near the commencement of election process for these posts also in effect renders such judicial scrutiny impractical and impossible and attracts the constitutional bar to such judicial scrutiny. The concerned Rules are therefore required to be amended to provide for such time-frame, leaving sufficient time period of, say at least six months, for such judicial scrutiny Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 9 of the quasi-judicial orders deciding such objections.
35. The earlier judgments of this Court providing for six months' period between draft Notifications and final Notifications providing for such reservations, including the process of filing objections and decision thereon by the competent authorities also does not leave any sufficient time for the judicial scrutiny in writ jurisdiction, looking to the burden of workload on the Courts and at least a period of six months should be left between the aforesaid quasi- judicial orders and the commencement of election process for these posts, for the Courts to pronounce upon the validity of such quasi- judicial orders passed by the competent authority of the State.
36. For the aforesaid reasons, these writ petitions deserve to be dismissed upholding the Preliminary Objection of the State and they are accordingly dismissed. In view of this, facts of individual Zilla Panchayat reservations for these posts are not required to be discussed separately.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 10
37. A brief look into the relevant case- laws cited at bar is given below:
First, the judgments relied upon by the State are being discussed :
38. In NANHOO MAL AND OTHERS Vs HIRA MAL AND OTHERS [(1976) 3 Supreme Court Cases 211], the Hon'ble Supreme Court dealing with the case of Municipal elections held that to fill-up a casual vacancy in the Office of the President of the Municipal Board, Soron, in the district of Etah in Uttar Pradesh, where the Respondent - Hira Mal filed a Writ Petition challenging the validity of the procedure adopted by the District Magistrate for holding the said election and prayed that the said elections be not held on October 1st, 1974, though the election programme had been notified in the UP Gazettee on 21-09-1974, but it was published in the Gazette of 24-09-1974, the Court finally negatived the challenge in the following words:-
"Thus the only way by which the election of a President can be called in question, is by means of an election petition presented in accordance with the provisions of this Act. The election itself can be questioned only on one of the three grounds mentioned above. The only Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 11 ground in the present case on the basis of which the election of the appellant was questioned is that there was a non-compliance with the provisions of Rule 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provision of the Act does not ipso facto result in the election being set aside. That result can be set aside only if the election Tribunal comes to the conclusion that the result of the election has been materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances there was no room for the High Court exercising its powers under Article 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 12
39. In Deputy Commissioner, Davanagere Vs. Smt. N. Latha and others,(W.A.No.3065/2010 & 3096-97/2010), the Division Bench of this Court [Hon'ble Mr. Justice J.S. Khehar, Chief Justice (as his lordships then here was) and Hon'ble Mr. Justice A.S. Bopanna], of this Court similarly upheld the Preliminary Objection as raised in the present case on the anvil of Article 243-O of the Constitution of India, while dealing with a case of reservation of Joladal Grama Panchayat for woman candidate belonging to BCA category by Notification dated 05-06-2010, as not justified while the Office of the Vice-President of the said Grama Panchayat was to be kept open for General category candidate and the Court held as under:
"Having perused the conclusion rendered in the decision relied upon by the learned counsel for the respondents and more particularly conclusion 4 in para 32 (extracted above). We are satisfied that W.P.Nos.18323-
325/2010 filed at the hands of the respondents before the election process had commenced hearing it would have interrupted, disturbed or delayed the Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 13 progress of the election. Thus, we are of the view, that under Article 243(0) of the Constitution of India, the objection raised by the appellant herein during the course of proceedings in W.P.Nos.18323-325/2010 was fully justified. The contrary conclusion drawn by the learned Single Judge is accordingly liable to be set aside. The same is therefore hereby set aside....."
40. In T.S. Krishnappa and another Vs. The State of Karnataka and others in Writ Petition Nos.41556-557/2012 c/w. W.P.Nos.44091/2012, 42007/2012 & 42145/2012, decided on 23/11/2012, a learned Single Judge of this Court (Hon'ble Justice Abdul Nazeer) in dealing with the case of reservations for the post of Adhyaksha and Upadhyaksha in Taluk Panchayat of Davanagere, negatived the challenge with the following observations:
"xx xx xx xx xx xx xx xx xx 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 Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 14 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 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.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 15 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 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 Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 16 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 Schedule Tribe; and drawing of lots, to provide reservation by way of rotation to 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 with liberty to challenge the elections by filing election petitions before the Competent Court. No costs."
41. The Gram Panchayat elections of 2015 under the Notification dated 25/05/2015 came to be dealt with by another learned Single Judge of this Court (Hon'ble Justice R.S. Chauhan) in C. Prakash and others Vs. The State Election Commission and others) in writ Petition Nos.25693-697 Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 17 & 25764-768/2015 and connected cases, decided on 29/06/2015, in which the learned Single Judge while explaining the meaning of rotation held that it is not practically feasible to seek mathematical precision in the rotation order and therefore the rotation cannot be insisted on a specified serial order. The aim of such rotation is to ensure that the benefit of reservation is extended across the board to different Panchayats and if said purpose is achieved, then it cannot be said that the rotation of the categories is violated.
42. This Court respectfully agrees with these observations and in the said judgment, the learned Single Judge ultimately dismissed the writ petitions finding the petitions to be a mere clever ploy to interrupt and delay the progress of elections and therefore deserved to be dismissed. While giving a direction to the State to allow sufficient time for people to raise objections against such notified reservations for these posts, which in view of the previous decision of this Court deserves to be notified well in advance.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 18
43. The relevant quotes from the said judgment contained in paragraphs 36, 37 and 53, 54 and 55 are quoted below for ready reference.
36. According to the Webster's Third New International Dictionary, the word "rotation" means "one complete turn: the angular displacement required to return a rotating body or figure to its original orientation; return or succession in a series; the action of placing in succession in a series". But according to the learned counsels for the petitioners the rotation must follow a particular order, i.e. SC, ST, OBC-A, OBC-B, Unreserved (Woman). According to them, this serial order cannot be violated. If it is violated, the notification issued by the Deputy Commissioners would be illegal. Harping on this argument, different counsels have tried to point out specific instances where this serial order has been ignored.
37. Although at first blush the argument sounds impressive, but a deeper examination exposes flaws in the argument. Firstly, the said series of categories have been spelt out in Para 3(i) of the notification dated 25-05-2015. The Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 19 said order is to be taken into account for working out reserving posts to different categories. However, Para 3(i) cannot be read in isolation. While the posts are to be reserved in this order, but other factors equally mentioned in the notification would necessarily have to be kept in mind: i) the population of SC and ST in the Taluk, ii) their percentage to the entire population of the Taluk, iii) the descending order of the Grama Panchayat with regard to the number of members elected from a particular category, iv) the fact whether the seat of the President was reserved for the particular category in the previous election or not; v) certain combinations of the posts of President and Vice-President, which are barred by the notification; vi) the maximum cap in case of Woman; vii) the maximum cap in case of reservation as such-this would also include the reduction in number of seats to be reserved for OBC-A and OBC-B categories. Therefore, while trying to reserve the post of President of a Grama Panchayat, the Deputy Commissioner must balance the above named factors. Hence, neither the repetition can be avoided, nor the non-inclusion of a particular category be ruled out. Therefore, to say the Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 20 rotation must follow a particular order is to seek mathematical precision in the rotation order. Partically it is not feasible. Therefore, the word "rotation" would have to be interpreted as assignment of different reserved categories in the Grama Panchayats of a Taluk so as to ensure that the benefit of reservation is extended to different Panchayats. Thus, keeping the different factors in mind, the reserved categories can be moved at random and need not be rotated in a specified order. Therefore, rotation cannot be insisted on a specified serial order. The aim of such "rotation" is to ensure that the benefit of reservation is extended across the board to the different Panchayat. If the said purpose is achieved, then it cannot be said that the rotation of categories is violated.
53. Considering the fact that only a handful of petitions have been filed, that too, on the repetitive plea of the post of President in a particular Grama Panchayat not being reserved for a particular reserved category, considering the fact that the overall picture is being missed, considering the fact that the material facts with regard to other factors which would necessarily Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 21 affect the decision are not being revealed, this Court is of the opinion that the petitions are merely a cleaver ploy to interrupt and delay the progress of the election. Hence, this court should not interfere with the election process.
54. But before ending this judgment, this Court would like to take note of a contention raised both by Mr. Jayakumar S. Patil, the learned Senior Counsel, and by Mr. Rajagopal, the learned counsel, with regard to the timing of the notification both by the election Commission and by the Deputy Commissioners. According to both the learned counsels in the case of Smt. Rekha Parashuram kattimani (supra) this court had directed the State "to ensure issue of the Notification well in advance, in the least, six months prior to the closing of the term of office of Adhyaksha and Upadhyaksha, so as to enable persons aggrieved to have their say in the matter". Furthermore in the case of Channigappa and Another Vs. State of Karnataka and Others [2000 (6) KLJ 163 (DB)] a learned Division Bench of this Court has observed as under:
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 22 We however direct that in future as and when Government exercises its statutory power and acts in the matter of rotation/delimitation/adjustment of seats, in terms of the rules, affected parties are to be given an opportunity to have their say with regard to their grievances in the said mater. We would further observe that the State Government would be well-advised to amend the rules providing for an opportunity to the affected general public to avoid and criticism on the Government.
55. Undoubtedly in a democracy, a government runs on the faith of the people. Therefore, every action of the government has to be above suspicion. The loss of the faith of the people not only corrodes the credibility of the government, but most importantly shakes the faith of the people in the Rule of Law. Hence, it is imperative that fairness should not only be done by the government in matter of election, but should also be seen to be done by it. This Court thus hopes that the directives issued by this Court would be followed by the State Government in the future. In case the State fails Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 23 to follow the directions and the advice given by this Court, it does it at its own peril.
However, for the reasons stated above, this Court does not find any merit in the writ petitions. Therefore, the petitions are, hereby, dismissed. No order as to cost.
44. Following the judgment of Hon'ble Supreme Court in the case of Election Commission of India, through Secretary Vs. Ashok Kumar and others [(2000)8 Supreme Court Cases P.216], the Hon'ble Court in an appeal by Special Leave under Article 136 of the Constitution of India against an interim order passed by the High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India, during the currency of the process of election, whereby the High Court had stayed the Notification issued by the Election Commission of India containing direction as to the manner of counting votes and made its own direction on the said subject, held that the judicial review by the High Court was limited and must satisfy the dual test evolved by the Apex Court. The Court held as under:
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 24 "It is not disputed that the Commission does have power to issue such notification. What is alleged is that the exercise of power was mala fide as the ruling party was responsible for large-scale booth capturing and it was likely to lose the success of its candidates secured by committing an election offence if material piece of evidence was collected and preserved by holding polling-stationwise counting and such date being then made available to the election Tribunal. Such a dispute could have been raised before and decided by the High Court if the dual test was satisfied:
(i) the order sought from the Court did not have the effect of retarding, interrupting, protracting or stalling the counting of votes and the declaration of the results as only that much part of the election proceedings had remained to be completed at that stage,
(ii) a clear case of mala fides on the part of Election Commission inviting intervention of the Court was made out, that being the only ground taken in the petition.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 25
45. Even in an advanced democracy like USA, such election issues were dealt with by Chief Justice Warren in B.A. Reynolds vs. M.O. SIMS (377 US P.533) and the Chief Justice Warren held that some deviations from the equal population principle are constitutionally permissible with respect to the apportionment of seats in State Legislature. The relevant portion of judgment is quoted below:
"We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters.
Mathematical exactness or precision is hardly a workable constitutional requirement.
.... So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature".
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 26
46. Now, a brief discussion of judgments relied upon by the learned counsel for petitioners, Mr. Jayakumar S. Patil is made hereunder:
47. In M. Abdul Azeez Vs. The State Of Karnataka, By Its Secretary, Urban Development Department And Others (ILR 2014 KAR.1839) the learned Single Judge of this Court (Hon'ble Mr. Justice H.G. Ramesh) explained the meaning of 'rotation' under Municipal Corporations Act beautifully in the following terms to mean that the word 'rotation' would mean something which moves in a circular order and strictly avoiding repetition of allotments to any reserved category by taking into consideration all the previous allotments made in each of the Municipalities. The learned Single Judge held that when a particular reserved category is represented in all the Municipalities of a particular kind, it would complete one cycle of rotation for that category and thereafter a fresh cycle of rotation for that category shall commence. The relevant portion of the judgment reads as hereunder:
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 27
11. The meaning of the principle of rotation in the context of the above referred proviso to sub-Section (1A) of Section 10 of the Municipal Corporations Act and the proviso to sub-Section (2A) of Section 42 of the Municipalities Act needs to be stated to answer the question raised in these writ petitions. It is also submitted by the Learned Counsel on both sides that there is no judgment by this Court on the interpretation of the word 'rotation' occurring in both the above provisos.
11.1. Both the above provisos which are similarly worded state that allotment of the offices of Chairpersons and Vice Chairpersons reserved in the Municipalities of the State shall be allotted to the reserved categories by rotation in the prescribed manner. Though both the provisos are quoted above, for convenience, the proviso under the Municipalities Act is extracted below:
"Provided that the offices reserved under this sub-section shall be allotted by rotation in the prescribed manner to different municipal councils.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 28 Explanation. - For the removal of doubts it is hereby declared that the principle 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;"
Rotation means something which moves in a circular order. 'Rotate' means to cause to turn in a circle. The principle of rotation, in the context of the above two provisos, means that the offices reserved for each of the reserved categories requires to be allotted by rotation in a circular order among the Municipalities of a particular kind till the said category is represented in all the Municipalities of that kind and allotment to the said category cannot be repeated in any Municipality till a cycle of rotation is completed. When a particular reserved category is represented in all the Municipalities of a particular kind, it would complete one cycle of rotation for that category and thereafter, a fresh cycle rotation for that category shall commence. Every reserved category has to have an independent cycle of rotation. Every such cycle shall be independent of its previous or the succeeding cycle. Before Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 29 completion of one cycle of rotation for a reserved category as explained above, if allotment to that category is repeated in any Municipality, it would be violative of the principle of rotation and such an allotement is illegal and is liable to be set-aside. This is the principle of rotation intended by the Legislature under the two provisos referred to above. The object of rotation is to provide representation to each of the reserved categories to the offices of Chairpersons and Vice Chairpersons in all the municipalities. I may add that to complete a Cycle of rotation in respect of a particular reserved category, it may take only one circular movement or several circular movements among the municipalities of a particular kind like CMCs, TMCs etc., depending upon the total number of offices reserved for that category in the State and the number of municipalities of that kind in the State. Several circular movements may become necessary due to several other reasons also. For eg., during a circular movement, when no candidate belonging to a particular reserved category is available in a municipality, then the allotment shall go to the next municipality in line in the circular order. Another example is, when Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 30 a rule requires that both the offices in a Municipality shall not be allotted to the same category. There may be many such valid reasons for bypassing a Municipality and to go to the next in line available in the circular order or to go to a previous one which was bypassed earlier for any valid reason. This all depends upon the order of rotation laid down by the Rules framed in this behalf by the State Government. But under no circumstance, 'repetition' is permissible i.e., allotment of the office for the same reserved category for the second time in a Municipality before commencement of a fresh cycle of rotation. Any 'repetition' would be contrary to the principle of rotation. However, in respect of the category of Backward classes, this principle of rotation is subject to the following proviso which is incorporated in both the Municipal Acts:
"Provided further that if no person falling under category "A" is available, offices reserved for that category shall also be filled by the persons falling under category "B" and vice versa";
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 31 11.2 The following example would illustrate the principle of rotation:
If the office of President in a City Municipal Council is allotted to a particular reserved category, the said office cannot be allotted for the second time to the said category in that Municipal Council before completion of a cycle of rotation for that category i.e., till the said category is allotted the office of President in all the other City Municipal Councils once.
12. An elementary test to find out as to whether the principle of rotation is violated or not, is to examine as to whether any allotment to a reserved category is repeated in any Municipality before commencement of a fresh cycle of rotation for that category. If there is any allotment to any reserved category for the second time in a Municipality before completion of a cycle of rotation or before commencement of a fresh cycle of rotation for that category, it would be a clear violation of the principle of rotation.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 32
13. The principle of rotation as explained above is not followed by the State Government while making allotments in the impugned notifications. Allotments made to several reserved categories in a large number of municipalities are 'repetitions'. What is 'repetition' is already explained above. It is also not the case of the State Government that there are no 'repetitions' in the allotments made in the impugned notifications.
14. The Rules framed by the State Government under both the Municipal Acts do not provide for the principle of rotation as explained above. This is evident by the very allotments made in the impugned notifications. The State Government is duty bound to amend the existing rules or to frame new rules to give effect to the principle of rotation which is the mandate of the Legislature."
48. In H.C. Yateesh Kumar and others Vs. The Karnataka Election Commission and others (ILR 2005 KAR.3323) [Hon'ble Mr.Justice H.L. Dattu (as his lordships here then was) and Hon'ble Mr. Justice H.N. Nagamohan Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 33 Das], the Division Bench of this Court struck down Karnataka Panchayat Raj (Reservation of Seats in Taluk Panchayats and Zilla Panchayats by rotation) Rules, 1998 as ultra vires and void and quashed the Notifications issued by the State Election Commission insofar as it related to allotment of reserved seats to different constituencies in each Taluk Panchayat and Zilla Panchayats. Paragraphs 5 & 26 read as under
Para.5. The petitioners in these writ petitions are voters in different villages in the State of Karnataka and they are eligible and qualified to contest for the post of Taluk Panchayat member the Zilla Panchayat member. The petitioners in all these petitions have prayed to strike down the Karnataka Panchayat Raj (Reservation of seats in Taluk Panchayats and Zilla Panchayats by Rotation), Rules 1998 (hereinafter called the 'Rules 1998') as illegal, void and ultra vires to Article 243D of the Constitution read with Section 162 of the Karnataka Panchayat Raj Act, 1993. It is further prayed for a writ of certiorari to quash the notifications issued by the 1st respondent State Election Commission relating to delimitation of the Constituencies and Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 34 reservation of the Constituencies in Taluka Panchayats and Zilla Panchayats in the State.
Para.26: The 1st Respondent State Election Commission allotted the reserved seats for Schedule Tribe and Scheduled Caste as stated above by taking into consideration the population of these reserved categories in the respective Taluks and one each to every taluk in a District. Sri. Raviverma Kumar, Learned Senior Counsel contends that this distribution of Zilla Panchayat seats to every Taluk in the District and on the basis of population is contrary to Article 243-D of the Constitution and also Section 162 of the Act, 1993. By this method of allotment of seats as per sub rule (1) and (2) of Rule 3 of Rules 1998 prepetuates the reservation of certain Constituencies for certain reserved categories. Somwarpet in Kodagu District is having largest SC population and therefore in every election 2 seats will be allotted to Somwarpet constitutency. Further, this method deprives the Scheduled Tribes and Scheduled Castes category people in other Constituencies to have their representation in the Zilla Panchayat. By perpetuation of reservation Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 35 in certain constituencies will deprive the other community people in the same constituency from contesting the elections. There is force in this submission of the Learned Senior Counsel and we accept the same. Therefore, the allotment of seats on the basis of population and by Taluk wise is contrary to Article 243-D of the Constitution. Article 243-D of the Constitution and Section 162 of the Act 1993, specifies that the reserved seats for Scheduled Tribes and Scheduled Caste are to be allotted by rotation to different constituencies in a Panchayat. But as per sub-rule (1) and (2) of Rule 3 of the Rules 1998, the 1st respondent State Election Commission allotted the seats Taluk wise and on the basis of population and as much the same is contrary to the requirement of Article 243-D of the Constitution and Section 162 of the Act, 1993.
However, the learned counsel for the petitioner at the bar informed the Court that an appeal against this judgment is pending before the Hon'ble Supreme Court of India. Moreover, the Rules of 1998 are not applicable in the present case as this Court is not presently Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 36 concerned with a similar controversy as was involved in that case.
49. In H. Shivappa and others Vs. State of Karnataka and others [(2005) 4 Kar.Law Journal 328], the learned Single Judge of this Court dealing with the elections to Municipalities, held that there is a distinction between the elections to the post of Chairpersons of Municipalities and the election to the Municipalities itself in the following terms:
36. The bar is in respect of the examination of the question of elections to the Municipalities.
It is to be noticed that the election to Municipalities is not the same as elections to the Chairpersons of the Municipalities, as indicated in Article 243-P (e) of the Constitution.
37. Even in Article 243-P(e) in fact a clear distinction has been maintained between a municipality and the Chairpersons of the municipality. Separate provisions providing for reservations have been made in Article 243-T for elections to the Municipalities and for elections to the posts of Chairpersons in the Municipalities.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 37 The word 'municipality' does not automatically take in its fold the Chairpersons of the municipality. The bar contained in Article 243- ZG is in respect of the elections to any municipality and not elections to the Chairpersons of the Municipalities. The bar operates if it is actually so provided for and not by way of an analogy or by way of an extension, if one should understand the position on the settled principles of the interpretation.
38. It is not possible to include the elections to the posts of Chairpersons to a municipality within the meaning of the word 'municipality', as the provision is one which curtails the jurisdiction of the Courts, imposes fetters on the jurisdiction, until and unless the bar is express and unambiguous.
The fact situation before the learned Single Judge in that matter was different from the facts involved in the present case. Therefore, that judgment is of no help to the petitioners in the present case.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 38
50. In L. Shivanna Vs. State of Karnataka (1988 Indian Law Reports Kar.P.2121), the Division Bench held that the only course open to a vigilant citizen is to have the illegality rectified before the election and if not done, as far as the Election Tribunal is concerned, it had no jurisdiction to go into any question relating to the legality of the electoral roll.
This judgment is also of no avail to the petitioners in the present case as the issue is not pertaining to challenge to the electoral roll in the present case.
51. In Karnataka State Election Commission, Bangalore Vs. Sri.G. Sangappa in Writ Appeal Nos.4506 to 4508 of 2010 decided on 3rd December, 2010, the Division Bench of this Court relying upon the judgment in the case of H.C. Yatheesh Kumar and others (supra) also dealt with the provisions of Rules of 1998 and held that the rotation in the matter of reservation contemplated under the aforesaid provisions had not been given effect through the impugned Notification dated 08/11/2010.
Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 39 Since the appeal against the previous Division Bench decision in the case of H.C. Yatheesh Kumar and others (supra) is pending before the Hon'ble Supreme Court for the aforesaid reasons also, this judgment is also of little help to the petitioners in the present case.
52. In view of the aforesaid legal position and the reasons assigned above, this Court is satisfied that these writ petitions cannot be entertained on merits and upon factual scrutiny of the reservations fixed category-wise in the election for the post of 'President' and 'Vice- President' for the year 2016 of Zilla Panchayats, the same cannot be quashed and no mala fides are established on the part of the State to have fixed these reservations for any illegal purpose and the writ jurisdictions in the present case is barred by Article 243-O of the Constitution of India and the writ petitions are therefore liable to be dismissed accordingly. Accordingly the writ petitions are dismissed. No order as to costs."
3. In view of the aforesaid judgment, the present petitions cannot be entertained and when the election Date of order:17.08.17 in WP Nos.36965-66/17 Nagaraju P & another Vs. The Deputy Commissioner and Others 40 process for the post of 'Adhakshya' has been initiated by the respondents, therefore, the present petitions are not maintainable and are liable to be dismissed.
The petitions are dismissed, accordingly. No costs.
Sd/-
JUDGE *bgn/-
(Sl.No.8 - List -1)