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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF APRIL, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.NAGAPRASANNA
WRIT PETITION No.200735/2021 (LB-ELE)
C/W
WRIT PETITION No.200790/2021 (LB-ELE)
WRIT PETITION No.200817/2021 (LB-ELE)
IN W.P.NO.200735/2021
BETWEEN:
MD. JEELANI S/O ABDUL WAHEED
AGE: 50 YEARS, OCC: SOCIAL WORK
R/O H.NO.17-3-46, GANDHI NAGAR
MAILOOR, BIDAR-585403
... PETITIONER
(BY SRI SHIVASHARANA REDDY, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BIDAR, BIDAR-585401
2. THE SECRETARY, URBAN DEVELOPMENT
AND MUNICIPAL AFFAIRS
2
VIKAS SOUDHA, 4TH FLOOR
BENGALURU-560001
3. THE COMMISSIONER
BIDAR MUNICIPALITY, BIDAR
MOHANRAJ MARKET
BIDAR-585401
... RESPONDENTS
(BY SRI Y.H.VIJAYAKUMAR, AAG A/W
SMT. ANURADHA M. DESAI, GA FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE SUBSEQUENT KARNATAKA GAZETTE
NOTIFICATION VIDE NO.£ÀCE 94 PÉJADgï 2018, ¨ÉAUÀ¼ÀÆgÀÄ,
16.03.2021, AS PER ANNEXURE-B TO WRIT PETITION
ISSUED BY RESPONDENT NO.2 AUTHORITY ONLY IN
RESPECT OF GRANTING RESERVATION AT WARD NO.26 TO
'GENERAL WOMEN CATEGORY' FROM 'BACKWARD CLASS A-
CATEGORY' AS PER ITS PREVIOUS KARNATAKA GAZETTEE
NOTIFICATION DATED 13.01.2021 AND ETC.
IN W.P.NO.200790/2021
BETWEEN:
BIRJU UPADHAYA
S/O WARANGAL
AGED ABOUT 37 YEARS
OCC: SOCIAL WORKER
R/O DINDAYAL NAGAR
3
HYDERABAD ROAD
BIDAR-585401
... PETITIONER
(BY SRI JAIRAJ K. BUKKA, ADVOCATE)
AND:
1. THE CHIEF SECRETARY TO
GOVERNMENT
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BENGALURU-560001
2. THE PRINCIPAL UNDER SECRETARY
URBAN DEVELOPMENT DEPARTMENT
(MUNICIPALITIES AND URBAN
DEVELOPMENT AUTHORITIES)
ROOM NO.435, 4TH FLOOR
VIKASA SOUDHA, VIDHANA VEEDHI
BENGALURU-560001
3. THE DIRECTORATE OF MUNICIPAL
ADMINISTRATION
9TH AND 10TH FLOORS
VISVESHWARAIAH TOWER
DR. B.R. AMBEDKAR VEEDHI
BENGALURU-560001
4. THE DEPUTY COMMISSIONER
BIDAR DISTRICT, BIDAR-585401
5. THE COMMISSIONER
CITY MUNICIPAL COUNCIL
BIDAR DISTRICT, BIDAR-585401
6. THE COMMISSIONER
KARNATAKA STATE ELECTION
COMMISSION, NO.08, 1ST FLOOR
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K.S.C.M.F. BUILDING ANNEXE
CUNNINGHAM ROAD
BENGALURU-560052
... RESPONDENTS
(BY SRI Y.H.VIJAYAKUMAR, AAG A/W
SMT. ANURADHA M. DESAI, GA FOR R1 TO R4 ;
SRI K.N.PHANEENDRA, SENIOR COUNSEL A/W
SRI AMARESH S. ROJA, ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED NOTIFICATION PASSED BY THE 2ND
RESPONDENT VIDE BEARING NUMBER SL.NO.NAAE 94 KMR
2018 BENGALURU DATED 16.03.2021 OF SERIAL NO.32 AND
WARD NO.32 WHICH IS AT ANNEXURE-M AND ETC.
IN W.P.NO.200817/2021
BETWEEN:
SYED MANSOOR AHMED QADRI
S/O LATE SYED AHMED QADRI
AGE: 55 YEARS,
OCC: CONSULTING ENGINEER
R/O H.NO.5-1-110, AHMED BAAG
GOLEKHANA, BIDAR-585401
... PETITIONER
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
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AND MUNICIPAL ADMINISTRATION,
VIDHANA SOUDHA, BENGALURU-560001
2. THE KARNATAKA STATE ELECTION
COMMISSION, NIRVACHANA NILAYA,
SHESHADRI ROAD, BENGALURU-560001
REPRESENTED BY ITS COMMISSIONER/
UNDER SECRETARY
3. THE DEPUTY COMMISSIONER
BIDAR-585401
4. THE ASSISTANT COMMISSIONER
BIDAR-585401
5. THE TAHASILDAR
BIDAR-585401
6. THE CITY MUNICIPAL COUNCIL
BIDAR REPRESENTED BY
ITS COMMISSIONER, BIDAR-585401
... RESPONDENTS
(BY SRI Y.H.VIJAYAKUMAR, AAG A/W
SMT. ANURADHA M. DESAI, GA FOR R1 & R3 TO R5;
SRI K.N.PHANEENDRA, SENIOR COUNSEL A/W
SRI AMARESH S. ROJA, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE NOTIFICATION/ORDER 29.03.2021 BEARING
NO.RAA.CHU.AA./45/EUB/2021, BENGALURU DATED
29.03.2021 ISSUED BY RESPONDENT NO.2 VIDE
ANNEXURE-G INSOFAR AS IT RELATES TO WARD NOS.5
AND 6 OF CMC, BIDAR AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
These writ petitions call in question certain notifications of reservation concerning ward Nos.5, 6, 26 and 32, all Municipal wards of Bidar City. W.P.No.200735/2021 concerns ward No.26, W.P.No.200790/2021 concerns ward No.32 and W.P.No.200817/2021 concerns ward Nos.5 and 6
2. Since all these petitions seek to challenge electoral process in the aforesaid municipal wards of Bidar city, they are taken up together and are disposed of by this common judgment.
3. Heard Sri Shivasharana Reddy, Sri Jairaj K. Bukka and Sri Sachin M. Mahajan, learned counsel for the petitioners and Sri Y.H.Vijaykumar, learned Additional Advocate General for the State and Sri K.N.Phaneendra, learned Senior counsel and 7 Sri Amaresh S. Roja, learned counsel appearing for the State Election Commission.
W.P.No.200735/2021 & W.P.No.200790/2021
4. The petition in W.P.No.200735/2021 calls in question the notification dated 16.03.2021 reserving municipal ward No.26 of Bidar city for 'General Woman'. The State Government by a notification dated 13.01.2021 notified ward No.26 to be reserved for Backward Class 'A' Category. This was a draft notification calling for objections from the stakeholders with regard to reservation made to all the 35 wards of Bidar City Municipality.
5. It transpires that no voters of the respective wards filed any objection within the time stipulated, to the notification dated 13.01.2021. After about 60 days, the State Government issued a final notification on 16.03.2021 altering the reservation 8 insofar as it pertains to ward No.26 from 'Backward Class 'A' Category' to 'General Woman'. No reasons are indicated in the notification for a change from 'Backward Class 'A' Category' to that of 'General Woman'.
6. W.P.No.200790/2021 concerns ward No.32 of Bidar city and raises an identical question of change of reservation from 'Scheduled Caste' to 'General Woman'. The facts in this writ petition are that reservation of ward No.32 made in favour of 'General Woman' had become subject matter of W.P.No.204314/2018 and connected cases wherein a notification changing the reservation from 'Scheduled Caste' to 'General Woman' was called in question. The said writ petitions were disposed on an undertaking given by the learned Additional Government Advocate that the notification impugned would be withdrawn and were in fact withdrawn in 9 terms of the undertaking. Therefore, the ward continued to be reserved in favour of 'Scheduled Caste'. The Government issued a notification on 13.01.2021 reserving ward No.32 in favour of 'Scheduled Caste' which was in tune with the undertaking given by the Government before this Court in the aforesaid writ petitions. After about 60 days, claiming to be issuing a final notification, again without there being any objections from any stakeholder before the last date changed the reservation of ward No.32 from 'Scheduled Caste' to 'General Woman'.
7. These writ petitions were filed on 24.03.2021 and 25.03.2021. The learned Government Advocate was directed to accept notice on 26.03.2021 and seek instructions in the matter. The matter was listed again on 31.03.2021 and at the request of the learned Government Advocate, the matter was listed 10 on 01.04.2021, on 01.04.2021 again at the request of learned Government Advocate the matter was adjourned to 05.04.2021 and on 05.04.2021, again on the request of the learned Government Advocate was adjourned to 06.04.2021. In W.P.No.200735/2021 on 06.04.2021, for want of instructions from the Government, this Court was constrained to pass an interim order on 06.04.2021 notwithstanding the calendar of events being notified on 29.03.2021 by the State Election Commission. The matter was again listed on 08.04.2021 and the learned Additional Advocate General was heard and the matter was adjourned to 09.04.2021. All the respective counsel appearing for the petitioners in these cases and the learned Additional Advocate General and Sri K.N.Phaneendra, learned Senior Counsel representing the State Election Commission were all heard at length.
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8. After hearing the respective learned counsels appearing for the parties, though this Court finds glaring illegality in the action of the State in varying reservation from draft notification, without there being any objections filed by any stakeholder in the final notification, since calendar of events are notified by the State Election Commission on 29.03.2021, this Court would hold its hands to interfere with the process of election by interjecting the same in view of the judgment of the Hon'ble Apex Court in the case of N.P.Ponnuswami vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others reported in AIR 1952 SC 64. Interference in the process of election once the calendar of events are notified would fall foul of the law laid down by the Hon'ble Apex Court in the case of N.P.Ponnuswami which is reiterated by the Hon'ble Apex Court in its latest 12 judgment in the case of State of Goa and another vs. Fouziya Imtiaz Shaikh and another reported in 2021 SCC Online SC 211 wherein the Hon'ble Apex Court has held as follows:
65. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results.
I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is "imminent" i.e, the notification for elections is yet to be announced.
(Emphasis supplied) 13
9. Therefore, in my considered view, the writ petitions which in effect challenge the calendar of events issued by the State Election Commission cannot be entertained at this stage as it would run counter to the aforesaid judgments of the Hon'ble Apex Court.
W.P.No.200817/2021
10. This writ petition concerns ward Nos.5 and 6 of the City Municipality, Bidar. The allegation in the writ petition is, 750 voters of ward No.5 are shown as voters in ward No.6. The contention of Sri Sachin M. Mahajan, learned counsel for the petitioner that it would tilt the balance in favour of particular party which is illegal and right to vote would be taken away by this method of the State issuing notification on 16.03.2021. This writ petition is filed on 06.04.2021, long after issuance of the notification of calendar of 14 events by the Second Respondent/State Election Commission. An identical issue came up for consideration before the Hon'ble Apex Court in the case of The State of Karnataka and others vs. Gunjahalli Nagappa and others reported in (1976) 1 SCC 204, the Hon'ble Apex Court has held as follows:
" State of Karnataka v. Gunjahalli
Nagappa, (1976) 1 SCC 204
11. That takes us to the alternative
argument advanced by the learned Solicitor General on behalf of the State Government. He contended that in any event even if the impugned order was bad and the election process was liable to be continued from the stage, at which it was interrupted, the poll could be taken only on the basis of the revised electoral roll which had come into being, in the meanwhile, in February 1975 and, therefore, it was necessary for the designated officer to correct the divisional lists of voters so as to bring them in accord with the revised electoral 15 roll. This contention is also without force. It is true that there is no provision in the Act similar to Section 23 sub-section (3) of the Representation of the People Act, 1950 providing that no amendment, transposition or deletion of any entry in the list of voters for a division shall be made and no direction for the inclusion of any name in such list of voters shall be given after the last date for making nominations for an election in the division. But the scheme of the Act and particularly Sections 14 and 15 make it clear that it is one list of voters for each division that is contemplated to be in force during the entire process of election. The list of voters is to be prepared for the election and "election" means the entire process consisting of several stages and embracing several steps by which an elected member is returned, whether or not it is found necessary to take a poll. Vide N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency [AIR 1952 SC 64 : (1952) SCR 218 : 1 ELR 133] . The list of voters must, therefore, a fortiori remain the same throughout the process of election. There cannot be one list of voters for determining the 16 eligibility to stand as a candidate and another for determining the eligibility to vote, at the same election. That would not only be irrational, but would also introduce confusion and uncertainty in the election process. Candidates would not know at the time when they file their nominations as to what is the strength and composition of the electorate in the division in which they are contesting the election. They would also be handicapped in canvassing for votes. It would indeed be a strange and anomalous position if there were two or more different lists of voters at different stages of the same election. Sub-section (1) of Section 14 does not contemplate a list of voters which keeps on changing from time to time during the election process. It deems the electoral roll for the territorial area of the division in force at the relevant time to be the list of voters for the division "for the purpose of the Act", that is for the purpose of election which is the whole process culminating in a candidate being declared elected and not merely polling. The same list of voters is, therefore, to prevail for all stages in the election. This we find emphasised also in sub- 17 section (3) of Section 14 which enacts that every person whose name is in the list of voters referred to in sub-section (1) shall be qualified to vote at the election of a member for the division to which such list pertains. Sub-section (2) of Section 15 also points in the same direction. It says that "the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be, at an election".
The reference here, as a matter of plain grammar, is indisputably to the same list of voters which is to be conclusive evidence for both purposes. It is, therefore, clear, on a proper interpretation of the provision of the Act, that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant electoral roll for the purpose of preparation of the list of voters must consequently be taken to be the electoral roll in force at the date when the election 18 process commenced, that is, the date when the calendar of events was published. The same view was taken by a Division Bench of the Mysore High Court in Shivappa Chanamallappa Jogendra V. Basavannappa Gadlappa Sankar [(1965) 2 Mys LJ 289]. We are in agreement with that view. The poll in the present case must, therefore, be taken on the basis of the list of voters for each division prepared with reference to the electoral roll in force on December 7, 1974, that being the date on which the calendar of events was published by the Returning Officer.
12. One other question was also raised before us, namely, whether the designated officer can be required to rectify the list of voters for a division, if it can be shown that the list of voters does not correspond exactly with the electoral roll for the territorial area of the division, as for example, some voters in a particular house in a census block number falling in the division, though shown in the electoral roll as such, are, through inadvertence, omitted to be included in 19 the list of voters for the division. It is not necessary for the purpose of the present appeal to decide this question, but we may point out that till the election process has commenced by the issue of notice fixing the calendar of events, there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the electoral roll. But once the calendar of events is published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We, however, do not wish to express any final opinion on this point."
(Emphasis supplied)
11. Therefore, entertaining the writ petition at this stage on the plea of the petitioner would again fall foul of the judgment of the Hon'ble Apex Court supra. The learned counsel for the petitioner submits that on 08.04.2021 there is a new voters list drawn up which 20 also is not in conformity with the notification dated 16.03.2021. If that be so, it is for the petitioner to submit a representation forthwith to the respondents who would be obliged to consider the same in accordance with law.
12. For the aforesaid reasons, I pass the following:
ORDER W.P.No.200735/2021 and 200790/2021 are dismissed.
W.P.No.200817/2021 is dismissed with the observations made hereinabove.
Sd/-
JUDGE NB*