Karnataka High Court
Sri Anjana Murthy N vs Smt. Kalpana Manjunatha on 21 April, 2021
Author: Satish Chandra Govindaraj
1 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2021
PRESENT
THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT APPEAL NO.46 OF 2021
C/W
WRIT APPEAL NO.227 OF 2021 (LB-RES)
IN WRIT APPEAL NO.46 OF 2021
BETWEEN:
1. SRI. ANJANA MURTHY.N
S/O L.N. NAGARAJU
AGED 38 YEARS
COUNCILOR WARD NO.1
PRASANNA ANJENEYA TRUST
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
2. SMT. RAJAMMA
W/O A. PILLAPPA
AGED 45 YEARS
COUNCILOR WARD NO.2
RAYAN NAGAR
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
3. SMT. N.G. SUJATHA
W/O MUNIYAPPA
AGED 43 YEARS
2 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
COUNCILOR WARD NO.3
BILLALNAGARA - JAYANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
4. SRI. R. SUNIL MOOD
S/O L. RUDRA NAIK
AGED 47 YEARS
COUNCILOR WARD NO.4
KOTE BEEDI, JAYADEVA HOSTEL ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
5. SRI. ANAND.G
S/O GANGANNA
AGED 39 YEARS
COUNCILOR WARD NO.5
DEVANGA BEEDI
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
6. SRI. GANGADHAR RAO.N.S
S/O L. SIDDOJI RAO
AGED 44 YEARS
COUNCILOR WARD NO.6
MARALONI ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
7. SRI. PURUSHOTHAM. A
S/O ANDANAPPA
AGED 38 YEARS
COUNCILOR WARD NO.7
CHENNAKESHAVASWAMI GUDI ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
3 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
8. SMT. SHARADHA UMESH
W/O UMESH
AGED 42 YEARS
COUNCILOR WARD NO.8
HIPPE ANJANEYASWAMY EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
9. SMT. DAKSHAYNI RAVIKUMAR
W/O RAVIKUMAR.N.G
AGED 43 YEARS
COUNCILOR WARD NO.9
JMC EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
10. SMT. POORNIMA SUGGARAJU
W/O SUGGARAJU
AGED 30 YEARS
COUNCILOR WARD NO.10
GAJARIYA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
11. SRI. GANESH.N
S/O NAGARAJU.N.M
AGED ABOUT 48 YEARS
COUNCILOR WARD NO.11
CHENNAPPA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
12. SRI. ANJANAPPA
S/O NARSIMHAIAH
AGED 64 YEARS
COUNCILOR WARD NO.12
BANK COLONY
TOWN MUNICIPAL COUNCIL
4 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
13. SRI. B. PADMANABHA
S/O B.T. BANANJAPPA
AGED 52 YEARS
COUNCILOR WARD NO.13
WEAVERS COLONY
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
14. SRI. K.M. SHIVAKUMAR
S/O K.R. MAYANNA
AGED 47 YEARS
COUNCILOR WARD NO.14
SUBHASHNAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
15. SMT. BAGYAMMA
W/O NARASIMHAMURTHY.N.V
AGED 40 YEARS
COUNCILOR WARD NO.15
GANESH RAO EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
16. SMT. BHARATHI BAI
W/O NARAYAN RAO
AGED ABOUT 48 YEARS
COUNCILOR WARD NO.16
IN AND AROUND SWAN SILK
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
17. SRI. PRADEEP.C
S/O S. CHANNABASAVAIAH
AGED 36 YEARS
COUNCILOR WARD NO.17
5 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
MASIDI ROAD, SUBHASHNAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
18. SRI. CHETAN.N.M
S/O LATE NAGARAJU
AGED 35 YEARS
COUNCILOR WARD NO.18
GOVINDAPPA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
19. SRI. NARASIMHA MURTHY
S/O LATE MARIYAPPA
AGED 47 YEARS
COUNCILOR WARD NO.19
VIJAYANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
20. SMT. LATHA HEMANTHKUMAR
W/O N.P. HEMANTHKUMAR
AGED 45 YEARS
COUNCILOR WARD NO.20
PARAMANNA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
21. SMT. LOLAKSHI
W/O GANGADHAR
AGED 40 YEARS
COUNCILOR WARD NO.21
INDIRANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
6 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
22. SMT. SUDHA
W/O KRISHNAPPA.K.K
AGED 48 YEARS
COUNCILOR WARD NO.22
SADASHIVANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123
23. SMT. PUSHPALATHA.B
W/O MARE GOWDA
AGED 42 YEARS
COUNCILOR WARD NO.23
DADAPEER EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALORE RURAL DISTRICT-562123 ... APPELLANTS
(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI. NAGARAJAPPA.A, ADVOCATE FOR A. NAGARAJAPPA &
ASSOCIATES-PH)
AND:
1. SMT. KALPANA MANJUNATHA
W/O SRI.MANJUNATH
AGED ABOUT 33 YEARS
EX.MEMBER ARISINAKUNTE
GRAMA PANCHAYATH
RESIDENT AT NO.48
BEHIND CIVIL COURT
JAKKASANDRA
NELAMANGALA TOWN
BENGALURU RURAL DISTRICT-562123
2. SRI. H. RAJANNA
S/O LATE HONNAPPA
AGED ABOUT 65 YEARS
EX.MEMBER ARISINAKUNTE
GRAMA PANCHAYATH
RESIDENT AT NO.377
ADARSHA NAGAR, KASABA HOBLI
7 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
NELAMANGALA TOWN
BENGALURU RURAL DISTRICT-562123
3. SRI. KEMPURAJU
S/O LATE HONNAPPA
AGED ABOUT 45 YEARS
EX.MEMBER VAJARAHALLI
GRAMA PANCHAYATH
RESIDENT AT VAJARAHALLI
KASABA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562123
4. SRI. LAKSHMINARAYANA
S/O LATE MURTHARAYAPPA
AGED ABOUT 44 YEARS
MEMBER AND PRESIDENT
ARISINAKUNTE, GRAMA PANCHAYATH
R/AT ADARSHA NAGAR
ARISHINAKUNTE VILLAGE, KASABA HOBLI
NELAMANGALA TALUK AND
BENGALURU RURAL DISTRICT-562123
5. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LOCAL BODIES AND
MUNICIPAL ADMINISTRATION
VIDHANA SOUDHA
BENGALURU-560 001
6. THE DIRECTOR OF MUNICIPAL ADMINISTRATION
DR. AMBEDKAR VEEDHI
VISHWESHWARAIAH TOWER
SAMPANGI RAMA NAGAR
BENGALURU-560 001
7. THE CITY MUNICIPAL COUNCIL
REPRESENTED BY ITS COMMISSIONER
NELAMANGALA
BENGALURU RURAL DISTRICT-562123
8. THE STATE ELECTION COMMISSION
FOR LOCAL BODIES
8 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
REP. BY ITS COMMISSIONER
NO.8, 1ST FLOOR, CUNNINGHAM ROAD
BENGALURU-56052
9. THE DEPUTY COMMISSIONER
BENGALURU RURAL DISTRICT
MINI VIDHANA SOUDHA
DEVANAHALLI -DODDABALLAPURA ROAD
CHAPARADA KALLU, BEERASANDRA VILLAGE
KUNDANA HOBLI, DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562110
10. THE NELAMANGALA CITY MUNICIPAL
COUNCIL, OFFICE BEARING BEING
THE ASSISTANT COMMISSIONER
DODDABALLAPURA SUB DIVISION
DODDABALLAPURA TALUK OFFICE ROAD
DODDABALLAPURA-651203
11. THE TAHASILDAR
NELAMANGALA TALUK
NELAMANGALA TALUK OFFICE
BENGALURU RURAL DISTRICT-562123 ... RESPONDENTS
(BY SRI. SUNIL SESHAGIRI RAO, ADVOCATE FOR C/R1 TO R3-PH;
SRI. SHYAN CHINNAPPA, AAG A/W
SMT. PRATHIMA HONNAPURA, AGA FOR R5, R6, R9 & R11)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 05.01.2021 OF THE LEARNED SINGLE JUDGE OF
THIS HON'BLE COURT MADE IN W.P.NO.11725/2020 C/W
6398/2020 AND DISMISS THE WRIT PETITIONS.
*****
IN WRIT APPEAL NO.227 OF 2021
IN WRIT PETITION NO.11725 OF 2020
BETWEEN:
1. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA, BENGALURU-560 001
REP. BY THE PRINCIPAL SECRETARY
9 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
2. THE DIRECTORATE OF MUNICIPAL
ADMINISTRATION, DR. AMBEDKAR VEEDHI
VISHWESWARAIAH TOWER
SAMPAGIRAMA NAGAR
BENGALURU
3. THE DEPUTY COMMISSIONER
BENGALURU RURAL
CURRENTLY ADMINISTRATOR
CITY MUNICIPAL COUNCIL NELAMANGALA
OFFICE AT MINI VIDHANA SOUDHA
BEERASANDRA VILLAGE
CHAPARADA KALLU GATE
KUNDANA HOBLI, DEVANAHALLI TALUK
DEVANAHALLI-DODDABALLAPURA ROAD
BENGALURU RURAL DISTRICT-562 110 ... APPELLANTS
(BY SRI.DHYAN CHINNAPPA, AAG A/W
SMT. PRATHIMA HONNAPURA, AGA-PH)
AND:
1. SMT. KALPANA MANJUNATH
W/O SRI. MANJUNATH
AGED ABOUT 33 YEARS
EX-MEMBER ARISHINAKUNTE
GRAM PANCHAYATH
R/AT NO. 48, BEHIND CIVIL COURT
JAKKASANDRA, NELAMANGALA TOWN
BENGALURU RURAL DISTRICT-562 123
2. SRI. H. RAJANNA
S/O LATE HONNAPPA
AGED ABOUT 65 YEARS
EX-MEMBER ARISHINAKUNTE
GRAMA PANCHAYATH
R/AT NO. 377, ADARSH NAGAR
ARISHINAKUNTE VILLAGE
KASABA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
10 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
3. SRI. KEMPARAJU
S/O LATE HONNAPPA
AGED ABOUT 45 YEARS
EX-MEMBER VAJARAHALLI
GRAM PANCHAYATH
R/AT VAJARAHALLI VILLAGE
KASABA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
4. THE CITY MUNICIPAL COUNCIL
REP. BY ITS COMMISSIONER
NELAMANGALA
BENGALURU RURAL DISTRICT-562 123
5. THE STATE ELECTION
COMMISSIONER FOR LOCAL BODIES
REP. BY ITS COMMISSIONER
NO.8, 1ST FLOOR, CUNNINGHAM ROAD
BENGALURU-560 052
6. SRI. ANJANA MURTHY.N
S/O L.N. NAGARAJU
AGED ABOUT 38 YEARS
COUNCILOR WARD NO.1
PRASANNA ANJENEYA TRUST
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
7. SMT. RAJAMMA
W/O A. PILLAPPA
AGED ABOUT 45 YEARS
COUNCILOR WARD NO.2
RAYAN NAGAR
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
8. SMT. N.G. SUJATHA
W/O MUNIYAPPA
AGED ABOUT 43 YEARS
COUNCILOR WARD NO.3
BILLAINAGARA - JAYANAGARA
TOWN MUNICIPAL COUNCIL
11 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
9. SRI. R. SUNIL MOOD
S/O L. RUDRA NAIK
AGED ABOUT 47 YEARS
COUNCILOR WARD NO.4
KOTE BEEDI, JAYADEVA HOSTEL ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
10. SRI. ANAND.G
S/O GANGANNA
AGED ABOUT 39 YEARS
COUNCILOR WARD NO.5
DEVANGA BEEDI
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
11. SRI. GANGADHAR RAO.N.S
S/O L. SIDDOJI RAO
AGED ABOUT 44 YEARS
COUNCILOR WARD NO.6
MARALONI ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
12. SRI. PURUSHOTHAM. A
S/O ANDANAPPA
AGED ABOUT 38 YEARS
COUNCILOR WARD NO.7
CHENNAKESHAVASWAMI GUDI ROAD
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
13. SMT. SHARADHA UMESH
W/O UMESH
AGED ABOUT 42 YEARS
COUNCILOR WARD NO.8
12 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
HIPPE ANJANEYASWAMY EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
14. SMT. DAKSHAYNI RAVIKUMAR
W/O RAVIKUMAR.N.G
AGED ABOUT 43 YEARS
COUNCILOR WARD NO.9
JMC EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
15. SMT. POORNIMA SUGGARAJU
W/O SUGGARAJU
AGED ABOUT 30 YEARS
COUNCILOR WARD NO.10
GAJARIYA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
16. SRI. GANESH.N
S/O NAGARAJU.N.M
AGED ABOUT 48 YEARS
COUNCILOR WARD NO.11
CHENNAPPA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
17. SRI. ANJANAPPA
S/O NARSIMHAIAH
AGED ABOUT 64 YEARS
COUNCILOR WARD NO.12
BANK COLONY
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
13 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
18. SRI. B. PADMANABHA
S/O B.T. BANANJAPPA
AGED ABOUT 52 YEARS
COUNCILOR WARD NO.13
WEAVERS COLONY
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
19. SRI. K.M. SHIVAKUMAR
S/O K.R. MAYANNA
AGED ABOUT 47 YEARS
COUNCILOR WARD NO.14
SUBHASHNAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
20. SMT. BAGYAMMA
W/O NARASIMHAMURTHY.N.V
AGED ABOUT 40 YEARS
COUNCILOR WARD NO.15
GANESH RAO EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
21. SMT. BHARATHI BAI
W/O NARAYAN RAO
AGED ABOUT 48 YEARS
COUNCILOR WARD NO.16
IN AND AROUND SWAN SILK
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
22. SRI. PRADEEP.C
S/O S. CHANNABASAVAIAH
AGED ABOUT 36 YEARS
COUNCILOR WARD NO.17
MASIDI ROAD, SUBHASHNAGARA
TOWN MUNICIPAL COUNCIL
14 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
23. SRI. CHETAN.N.M
S/O LATE NAGARAJU
AGED ABOUT 35 YEARS
COUNCILOR WARD NO.18
GOVINDAPPA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
24. SRI. NARASIMHA MURTHY
S/O LATE MARIYAPPA
AGED ABOUT 47 YEARS
COUNCILOR WARD NO.19
VIJAYANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
25. SMT. LATHA HEMANTHKUMAR
W/O N.P. HEMANTHKUMAR
AGED ABOUT 45 YEARS
COUNCILOR WARD NO.20
PARAMANNA EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
26. SMT. LOLAKSHI
W/O GANGADHAR
AGED ABOUT 40 YEARS
COUNCILOR WARD NO.21
INDIRANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
27. SMT. SUDHA
W/O KRISHNAPPA.K.K
AGED ABOUT 48 YEARS
COUNCILOR WARD NO.22
15 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
SADASHIVANAGARA
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123
28. SMT. PUSHPALATHA
W/O MAREGOWDA
AGED ABOUT 42 YEARS
COUNCILOR WARD NO.23
DADAPEER EXTENSION
TOWN MUNICIPAL COUNCIL
NELAMANGALA
BANGALURU RURAL DISTRICT-562123 ... RESPONDENTS
IN WRIT PETITION NO.6398 OF 2020
BETWEEN:
1. STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA, BENGALURU-560 001
2. THE DIRECTORATE OF MUNICIPAL
ADMINISTRATION, DR. AMBEDKAR VEEDHI
VISHWESWARAIAH TOWER
SAMPAGIRAMA NAGAR
BENGALURU
3. THE DEPUTY COMMISSIONER
BENGALURU RURAL
MINI VIDHANA SOUDHA
DEVANAHALLI-DODDABALLAPURA ROAD
CHAPARADA KALLU
BEERASANDRA VILLAGE
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 110
4. THE TAHSILDAR
NELAMANGALA TALUK
NELAMANGALA TALUK OFFICE
NELAMANGALA TOWN
BENGALURU RURAL DISTRICT ... APPELLANTS
16 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
(BY SRI.DHYAN CHINNAPPA, AAG A/W
SMT. PRATHIMA HONNAPURA, AGA-PH)
AND:
1. SMT. KALPANA MANJUNATH
W/O SRI. MANJUNATH
AGED ABOUT 33 YEARS
EX-MEMBER ARISHINAKUNTE
GRAM PANCHAYATH
R/AT NO. 48, BEHIND CIVIL COURT
JAKKASANDRA, NELAMANGALA TOWN
BENGALURU RURAL DISTRICT-562 123
2. SRI. LAKSHMINARAYANA
S/O LATE MURTHARAYAPPA
AGED ABOUT 44 YEARS
MEMBER AND PRESIDENT
ARISHINKUNTE GRAM PANCHAYATH
R/AT ADARSH NAGAR
ARISHINKUNTE VILLAGE
KASABA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
3. SRI. H. RAJANNA
S/O LATE HONNAPPA
AGED ABOUT 65 YEARS
MEMBER ARISHINAKUNTE
GRAMA PANCHAYATH
R/AT NO. 377, ADARSH NAGAR
ARISHINAKUNTE VILLAGE
KASABA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
4. SRI. KEMPARAJU
S/O LATE HONNAPPA
AGED ABOUT 45 YEARS
MEMBER VAJARAHALLI
GRAM PANCHAYATH
R/AT VAJARAHALLI VILLAGE
17 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
KASABA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123
5. THE CITY MUNICIPAL COUNCIL
REP. BY ITS COMMISSIONER
NELAMANGALA
BENGALURU RURAL DISTRICT-562 123
6. THE STATE ELECTION
COMMISSIONER FOR LOCAL BODIES
REP. BY ITS COMMISSIONER
NO.8, 1ST FLOOR, CUNNINGHAM ROAD
BENGALURU
7. THE NELAMANGALA CITY
MUNICIPAL COUNCIL
OFFICE BEARER BEING
THE ASSISTANT COMMISSIONER
DODDABALLAPURA SUB-DIVISION
DODDABALLAPURA TALUK
OFFICE ROAD
DODDABALLAPURA. ... RESPONDENTS
(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI. A. NAGARAJAPPA, ADVOCATE OF
A.NAGARAJAPPA & ASSOCIATES TO R6 TO R28-PH)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 05.01.2021 OF THE LEARNED SINGLE JUDGE OF
THIS HON'BLE COURT MADE IN W.P.NO.11725/2020 (LB-RES)
C/W WP NO.6398/2020 (LB-ELE).
*****
THESE WRIT APPEALS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 10.03.2021, THIS
DAY, SURAJ GOVINDARAJ J., PRONOUNCED THE
FOLLOWING:
18 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
JUDGMENT
1. The appellants are before this Court seeking for
setting aside the Order dated 05.01.2021 passed
by the learned Single Judge of this Court in
W.P.No.11725/2020 c/w W.P.No.6398/2020. By
way of the said Order, the learned Single Judge
was pleased to allow the aforesaid writ petitions
and direct the State Government to hold
elections to the Nelamangala City Municipal
Council within an outer limit of two months from
the date of receipt of a certified copy of that
Order.
2. W.P.No.6398/2020 had been filed seeking the
following reliefs:
2.1. Issue a writ/order/direction declaring that the town
municipal Council of Nelamngala, stands dissolved
and consequently has agglomerated itself within
the newly constituted City Municipal Council
Nelamangala, in terms of Annexure-D;
19 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
2.2. Issue a writ/order/direction in the nature of
certiorari quashing all further processes of election
to the non-existing Town Muncipal Council,
Nelamangala as issued by the respondent No.5
dated 13.03.2020 in Order No.ELN(Pam)CR.38/19-
20 AT Annexure-A;
2.3. Issue a writ/order/direction in the nature of
certiorari quashing order dated 16.03.2020 in
Circular No.ELNCR/42/19-20 all further processes
of election to the non-existing Town Municipal
Council, Nelamangala as issued by the Respondent
No.7 at Annexure-A1;
2.4. Issue a writ/order/direction in the nature of
mandamus directing the authorities to hold and
conduct elections to the respondent No.2 and
further appoint a person in the rank of
Deputy/District Commissioner as the administrative
officer of the respondent No.2 in terms of Section
315 of the Karnataka Municipalities Act.
3. W.P.No.11725/2020 had been filed seeking the
following reliefs:
3.1. Issue a writ/order/direction quashing the office
Circular passed by respondent No.1 bearing No.UD
37 MLR 2020 dated 03.08.2020 as found at
Annexure-A proposing to recall the appointment of
Administrator and resulting in nominating 23
members to newly formed City Municipal Council,
Nelamangala, by backdoor methods, as being void
ab-initio and contrary to statute;
3.2. Issue a writ/order/direction of Certiorari quashing
the consequent impugned Order passed by the
respondent No.4 dated 14.08.2020 bearing
20 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
No.DUDA(C3)/VV/44/2020-21 in making a
recommendation contrary to the statute;
3.3. Issue a writ/order/direction in the nature of
mandamus directing the respondents to implement
the Order dated 11.5.2020 bearing No.UD 24 MLR
2020 dated 11.5.2020 found at Annexure-K
3.4. Issue a writ/order/direction in the nature of
mandamus directing the authorities to continue the
Administrative Officer already appointed under
Section 315 of the Karnataka Municipalities Act till
the regular elections are completed.
FACTS
4. The facts leading upto the above are:
4.1. A cabinet decision was taken on 28.02.2019
to form the Nelamangala CMC, which would
include the Nelamangala TMC, the entire
Arishinakunte and Vajrahalli Gram
Panchayats and a portion of
Vishveswarapura and Basavanahalli Gram
Panchayaths.
4.2. Subsequent to the said cabinet decision, a
preliminary proclamation was published in
21 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
terms of Section 3 (1) of the Karnataka
Municipalities Act on 27.06.2019
whereunder the State Government made
known the above intent as approved by the
cabinet.
4.3. The respondent-State Government issued a
preliminary proclamation by virtue of the
powers vested in it under the Karnataka
Municipalities Act, 1964 (hereinafter
referred to as 'the Act'). By virtue of the
said proclamation, the existing Nelamangala
Town Municipal Corporation ('TMC' for
short) along with the entire Arishinakunte
and Basavanahalli Gram Panchayats and
portions of Vajrahalli and Visveshwarapura
Gram Panchayaths were sought to be
absorbed into the newly constituted
Nelamangala City Municipal Council (for
22 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
short, 'CMC'). Suffice it to say that prior to
the said proclamation, there was no
Nelamangala CMC in existence and the
above TMC and Gram Panchayaths had
independent existence.
4.4. The consent of the said TMC and Gram
Panchayat had already been sought for and
obtained on
4.4.1. 28.12.2017 from Nelamangala
TMC,
4.4.2. on 11.01.2018 from Arishinkunte
Gram Panchayath,
4.4.3. on 08.02.2018 from Vajrahalli
Gram Panchayath,
4.4.4. on 01.03.2018 from Viveshwapura
Gram Panchayath,
23 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
4.4.5. on 01.03.2018 from Basavanahalli
Gram Panchayat.
4.5. By virtue of the said letters, consent had
been furnished for the creation of a larger
urban area viz., Nelamangala CMC.
4.6. Consequent to the proclamation dated
27.07.2019, a Government Order bearing
No.UDD/65/MLR/2016 came to be issued
and gazetted on 26.11.2019 under Section
9 of the Act. By virtue thereof, the
Nelamangala CMC was created comprising
of above TMC and Gram Panchayaths
consisting of 24.49 sq.kms having a
population of 70,393.
4.7. On the publication of Gazette notification,
the administrative officer of the newly
constituted Nelamangala CMC had written
24 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
to the Executive Officer, Taluk Panchayat,
Nelamangala to hand over the details of all
assets and liabilities of the TMC to CMC vide
letter dated 25.02.2020, which was so
handed over. Subsequently, the State
Election Commission has authorized the
Tahsildar to act as a Returning Officer to
conduct election to the post of president
and vice-president of the newly constituted
Nelamangala CMC.
4.8. In terms of the roaster applicable, the post
of President of Nelamangala TMC had been
earmarked for General category and the
post of Vice President had been earmarked
for General (woman) category.
4.9. It is in such circumstances that
W.P.No.6398/2020 was filed on 18.03.2020
25 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
seeking for declaration that the
Nelamangala TMC stands dissolved by way
of the aforesaid absorption and creation of
new Nelamangala CMC, for quashing of the
process of election as also for a mandamus
directing the authorities to hold and conduct
elections to the newly constituted
Nelamangala CMC and appoint a person of a
rank of Deputy Commissioner as an
Administrative Officer of the CMC in terms
of Section 315 of the Karnataka
Municipalities Act.
4.10. Immediately after the issuance of notice in
WP No.6398/2020, the State Government
vide a Government Order bearing
No.UD/24/MLR/2020 directed the
authorities to initiate delimitation exercise,
ward-wise identification process of the
26 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
category of population and fix the
reservation roaster.
4.11. The State Government also appointed the
Deputy Commissioner as the Administrative
Officer of the Nelamangala CMC on
06.07.2020 in terms of Section 315 of the
Act. In the said Order dated 06.07.2020, it
was categorically stated that since the
newly constituted Nelamangala CMC did not
have any elected council, in the interest of
administration until the newly elected
Council comes into being, the Deputy
Commissioner, Bangalore Rural District was
appointed as an administrator under Section
315 of the Act until further orders. The said
Order reads as under:-
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4.12. On 03.08.2020, the Under Secretary,
Urban Development Department wrote to
the Director, Municipal Administration, and
28 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
Deputy Commissioner, Bangalore Rural,
stating that in view of the elected
representatives of the TMC and the Gram
Panchayats forming part of the newly
constituted Nelamangala CMC continuing to
hold office in terms of Section 361 (3) of
the Act, they will continue to hold office in
the converted TMC areas and in terms of
Section 360(d) of the Act, nomination of
additional councillors has to be made as
regards the Panchayats being merged with
newly constituted Nelamangala CMC and
hence, it was stated that no new elections
are required to be held. In pursuance
thereof, vide letter dated 14.08.2020, on
considering the representation furnished by
the members of the TMC, Nelamangala, the
members of the Nelamangala TMC were
29 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
declared to be the members of the newly
constituted Nelamangala CMC.
4.13. It is aggrieved by the same that
W.P.No.11725/2020 had been filed seeking
for a direction to quash the Circular issued
by respondent No.1- State Government
dated 03.08.2020. The Order passed by the
Deputy Commissioner, Bangalore Rural,
dated 14.08.2020 and for a mandamus
directing the implementation of the Order
dated 11.05.2020.
5. The learned Single Judge appreciating the facts,
applicable law and circumstances, came to a
conclusion that
5.1. No one provision of the Act addresses the
situation since Section 359 nor Section 360
nor Section 361 of the Act could address
30 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
the present issue of upgradation of the TMC
to CMC area, absorption of two entire Gram
Panchayats and absorption of portions of
two Gram Panchayats.
5.2. Section 358 of the Act would be applicable,
thereby requiring the reconstitution of the
municipal Council within a period of six
months therefrom so as to confer
legitimacy under the Constitution to the
elected body. This being so for the reason
that Section 358 of the Act is to be
considered to be a general provision
applicable to all circumstances
contemplated under Chapter XVI of the
Act.
5.3. On the upgradation, the erstwhile
councillors of the Nelamangala TMC cannot
31 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
contend that they would continue as
councillors of the CMC till the expiry of their
term.
5.4. The learned Single Judge considering the
mandate of Article 243-R of the
Constitution was of the opinion that all the
seats in the Municipality are to be filled up
with persons chosen by direct elections,
satisfying the requirement of reservations
under Article 243-T of the Constitution as
also for the elections to be held at the
duration of five years each.
5.5. Taking into consideration the fact that the
Nelamangala TMC which had a population
less than 40,000 had 23 councillors from
23 wards but by inclusion of the two entire
Gram Panchayats and two partial Gram
32 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
Panchayats, the population of the
Nelamangala CMC stood increased to
70,393, which would require 31 wards to
be demarcated and 31 councillors to be
elected. It is only if such steps were taken
that there would be legitimacy in the
Municipality and hence, the learned Single
Judge held that Sections 359, 360 and 361
of the Act would come into operation
simultaneously and the Government would
be required to hold elections within a
period of six months as mandated by
Section 358 of the Act.
5.6. Taking into account the fact that an
administrator had been appointed, the
learned Single Judge was of the considered
opinion that such an administrator could
not hold the office for more than a period
33 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
of six months, and as such, elections are
required to be held within the said period of
six months.
5.7. The learned Single Judge negated the
contention of the respondent/state that the
interests of the residents of the area are
met by the Government nominating
additional Councillors to the newly
constituted Nelamangala CMC. The learned
Single Judge was of the opinion that
nomination of councillors would not amount
to direct election, therefore, contravening
Article 243-R of the Constistution.
Furthermore, the same would violate the
requirement of reservation under Article
243-T of the Constistution. Hence, the
learned Single Judge allowed the writ
petitions directing the State Government to
34 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
hold elections to the Nelamangala CMC
within an outer limit of two months from
the date of the Order.
5.8. It is aggrieved by the same that the
appellants in W.A.No.46/2021 who claim to
be the elected representatives of the
erstwhile Nelamangala TMC are before this
Court. The State is also before this Court on
appeal in W.A.No.227/2021.
6. The appellants in W.A.No.46/2021 contend that
6.1. The petitioners in W.P.No.11725/2020 did
not have any locus to file such a writ
petition inasmuch their term as panchayat
members had ended long ago. Hence, they
could not maintain any writ petition.
6.2. They did not have any subsisting interest in
continuing as Gram Panchayat members, at
35 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
the most, the same could be a Public
Interest Litigation, which is also not
maintainable.
6.3. The learned Single Judge ought not to have
granted any relief in the said matter. The
orders passed by the State Government
and the Deputy Commissioner were in
accordance with Section 361 (3) and
360(d) of the Act, the said orders cannot
be challenged.
6.4. The said orders having been passed in
order to ensure that the term of the office
of the appellants are maintained and not
cut short. The elections to the TMC was
held in pursuance of the notification dated
13.05.2019 on 03.06.2019 in order to
comply with the mandate under Articles
36 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
243 (ZA), 243 (R) and 243 (T) of the
Constitution of India as also in terms of
Section 9 of the Act and Rule 8 of the
Karnataka Municipalities (Election of
Councillors) Rules, 1977, they were notified
as elected councillors and as such have a
guaranteed tenure of five years from such
date of the election.
6.5. The term of five years cannot be cut short
by way of the Order of the learned Single
Judge directing the holding of fresh
elections. The learned Single Judge has not
issued any particular direction to the State
Election Commission to hold the election,
and as such, the Order is not
implementable.
37 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
6.6. There being no relief sought against the
State Election Commission, the question of
directing the State Government to conduct
the election is not permissible. The
delimitation exercise can only be carried
out in the year 2024 after the term of the
present councillors comes to an end in the
year 2024, and the same cannot be done
now. It is contended that delimitation
exercise is still not carried out. The learned
Single Judge has proceeded under the
wrong premise that delimitation has
already been carried out, and as such, the
Order is to be set aside.
6.7. Merely because a TMC is upgraded and/or
panchayats are merged with the TMC,
there are no requirements for holding an
election, if such an order is implemented,
38 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
there would be multiple elections, which
would have to be held, which would be
contrary to the mandate of the
Constitution. A census being conducted in
the year 2021, the delimitation exercise
would have to be carried out in furtherance
of the said census. In the absence of
census and delimitation, no fresh election
can be held in respect of newly formed
Nelamangala CMC.
7. In W.A.No.227/2021 filed by the State
Government, it is contended that
7.1. The State Government has exercised the
powers vested with it in a proper and
required manner. The State Government,
by exercising powers under Section 360 (d)
of the Act, has nominated one member
39 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
each from the panchayat area absorbed in
the CMC.
7.2. It is for the councillors nominated under
Sections 359 (1) (j), and 360 (1) (d) of the
Act i.e., the additional councillors to act as
representatives of the people of the
constituency and they would have voting
rights.
7.3. The delimitation exercise is still not
completed. Hence, it is not possible to hold
an election within two months time as
directed by the learned Single Judge.
7.4. The W.P.No.6398/2020 having been filed
for the purpose of formation of CMC and
the same having been done, the same
ought to have been dismissed as having
become infructuous.
40 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
7.5. On the Constitution of the CMC, the
petitioners in W.P.No.11725/2020 have
therefore ceased to be gram panchayat
members. Hence, they would have no locus
to file W.P.No.11725/2020 since they are
neither councillors of the TMC or CMC nor
they have sought for being nominated as
additional councillors of the CMC, which
nomination is at the sole discretion of the
State Government.
7.6. Merely because there is a newly constituted
CMC and/or a TMC is upgraded to a CMC,
fresh elections are not required to be held.
Such a situation is taken care by Section
359 and Section 360 of the Act whereunder
the existing members of the TMC would
continue as elected members of CMC, and
insofar as Panchayat is concerned, the
41 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
Government would nominate the additional
councillors. On the aforesaid grounds, the
State Government has sought for setting
aside of the Order of the learned Single
Judge.
8. Sri. Jayakumar S.Patil, learned Senior counsel
appearing for the appellants in W.A.No.46/2021
while reiterating the contents of the appeal,
would submit:
8.1. When a statute provides for the exercise of
power by the State Government and the
State Government has exercised the same
in terms of the said statute, the same
cannot be faulted with nor could the same
be set aside by the learned Single Judge.
8.2. Admittedly TMC is upgraded to CMC in
terms of Section 361 of the Act. On such
42 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
up-gradation and/or conversion, all the
properties vested with TMC would get
transferred to CMC, all notifications,
including the notification regarding the
appellants having been elected as
councillors, would continue to remain in
force. The elected representatives would
continue to hold the office as councillors of
the CMC until the next election since the
term of their office is guaranteed by the
Constitution of India.
8.3. The appellants in W.A.No.46/2021, having
been elected as recently as in the year
2018, their elections cannot be negated by
the conversion of TMC into CMC or the
absorption of the Panchayat into a CMC.
43 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
8.4. Every time when there is an up-gradation
or absorption, there cannot be a fresh
election. The tenure of the elected
representatives has to be considered and
protected. The Act in terms of Section 359
(1) (j) of the Act provides necessary
powers to the State Government to
nominate additional councillors in the event
of the entire Panchayat area being
absorbed into smaller urban area.
8.5. In the present case, the entire
Arishinakunte and Basavanahalli Gram
Panchayats being absorbed in the
Nelamangala CMC, the State Government
could nominate additional councillors for
every 1000 residents in the said panchayat
area, which process is yet to be completed.
44 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
8.6. The petitioners could not have any
grievance in relation thereto since, until the
next election, their interest could be
safeguarded by the additional councillors
nominated by the Government.
8.7. In respect of a part of the panchayat area
being absorbed in a smaller urban area like
absorption of a portion of Vajrahalli,
Rajarahalli and Vishveshwapura into the
Nelamangala CMC, Section 360 (d) of the
Act provides powers to the State
Government to nominate additional
councillors for every 1000 persons of the
area absorbed in the smaller urban area
which power is also in the course of being
exercised by the State Government. These
additional councillors would take care of
the interest of the Vajrahalli and
45 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
Vishveswapura Gram Panchayats and as
such, there was no requirement for the
learned Single Judge to interfere with the
same.
8.8. If the process of delimitation were to be
conducted, it would take a long period of
time, thereby depriving the residents of the
Nelamangala CMC from elected
representatives till that time as also
depriving the already elected councillors of
their guaranteed tenure. On the above
grounds, he submits that the Writ Appeal is
required to be allowed and the Order
passed by the learned Single Judge is to be
set aside.
9. Sri. Dhyan Chinnappa, learned Senior counsel
and learned Additional Advocate General
46 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
appearing for the State in W.A.No.227/2021
while adopting the submissions made by
Sri.Jaykumar S.Patil, learned senior counsel
further submitted that:
9.1. If elections were to be held every time a
TMC is upgraded to CMC or Panchayat
absorbed in a TMC or CMC, then in that
event, the Government could resort to such
mergers and/or up-gradation so as to hold
an election whenever found fit by the
Government.
9.2. Thus, if such elections are held as directed
by the learned Single Judge, the entire
democratic system would come to an end
resulting in a burden on the public
exchequer etc.,
47 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
9.3. As such, holding of an election cannot be
an answer, more so, when the State has
powers under Sections 360 (d) and 359
(1)(j) of the Act to nominate additional
councillors, and in terms of Section 361 of
the Act, the councillors of the TMC would
continue as councillors of the CMC. Thus,
he submits that the Writ Appeal filed by the
State needs to be allowed and the Order
passed by learned Single Judge is to be set
aside.
10. Sri.Sunil Rao, learned counsel appearing for
respondents in both the matters would support
the decision of the learned Single Judge and
submit that the Order passed by learned Single
Judge is proper and correct and the said Order is
the most reasonable and practical Order that
could have been passed in the given
48 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
circumstances. Though he has no objection for
the Constitution of the Nelamangala CMC, he
submits:
10.1. Once the said CMC has been established, it
is required for election to be held so that
the residents of the said CMC are properly
and adequately represented, since the
entire demography of the area has
changed.
10.2. That maximum of 4 persons can be
nominated by the State. The strength of
the erstwhile Nelamangala TMC is 23
councillors, and only 4 additional
councillors could be nominated, totalling
27.
10.3. The 23 councillors are elected from and out
of the area coming within the erstwhile
49 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
TMC consisting of less than 40,000 people.
Thus, he submits that 23 councillors would
actually be representing less than 40,000
people and 4 additional councillors would
be representing more than 30,000 people
added to the CMC from the Panchayat.
Thus, he submits that there would be an
imbalance in the representation, which is
not permissible.
10.4. The Act does not take into consideration
the conversion of a TMC into CMC and the
simultaneous absorption of entire Gram
Panchayat or a portion of Gram Panchayat.
Thus, the State cannot exercise powers
under Sections 359 and 360 of the Act.
simultaneously. The Act not providing such
powers, the State having exercised such
powers is contrary to the statutes and
50 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
when no such power is provided, the only
thing that could have been done was to
hold fresh elections, which is so directed by
the learned single judge and as such he
submits that the Order of the learned
Single Judge ought not to be interfered
with.
11. Heard Sri. Jaykumar S.Patil, learned Senior
counsel appearing for the appellant in
W.A.No.46/2021 and Sri. Dhyan Chinnappa
learned Senior counsel and learned Additional
Advocate General for the appellant in
W.A.No.227/2021 and Sri. Sunil Rao, learned
counsel for respondents in both the matters and
perused papers.
51 WA NO.46 OF 2021
C/W WA NO.227 OF 2021
12. On the basis of the submissions made, pleadings
filed, the documents on record, the points that
would arise for our consideration are:
1. Whether while conversion of Town
Municipal area into a City Municipal
area, Panchayat could be added to the
said City Municipal Council?
2. What would be the status of the
elected representatives of the Town
Municipal Corporation when the same
is converted into a City Municipal
Council?
3. What would be the status of the
elected representatives of the
Panchayat when the Panchayat is
merged with the newly formed City
Municipal Council?
4. Is a tenure of five years sacrosanct, or
could it be varied on account of the
merger and/or conversion into a City
Municipal Council?
5. Whether nomination as contained
under Section 359(1) (j) and 360(d) of
the Municipalities Act would be
sufficient to hold that there is an
appropriate representation of the
merged Panchayat into a City
Municipal Council?
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6. What is the effect of delimitation and
reservation on such merger and
formation of City Municipal Council?
7. Whether the provisions of Section 358
could apply to a newly formed City
Municipal Council by conversion of
Town Municipal Council and merger of
panchayats is carried out?
8. Does the judgment of the learned
Single Judge suffer from legal infirmity
requiring interference?
9. What Order?
13. Before answering the points, the relevant
provisions, namely Sections 358, 359, 360 and
361 of the Act, are reproduced hereunder for easy
reference:
Section 358: Term of office of members of interim
municipal Council and their powers.--
(1) The Government shall, within a period not exceeding
six months from the date on which the interim
municipal Council has been constituted, take steps in
accordance with section 11 for the purpose of
determining the number of councillors of, and for
holding elections for, a new municipal council.
(2) The councillors of the interim municipal Council shall
hold office until the date immediately preceding the
date of the first meeting of the new municipal Council.
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(3) Any vacancy in the office of the interim municipal
Council shall be filled as soon as conveniently may be,
by appointment by the Government.
(4) All arrears of rates, taxes and fees, vesting in the
interim municipal Council shall, notwithstanding that
such rates and fees cannot be levied under this Act, be
recoverable in the same manner as a tax recoverable
under chapter VII.
(5) In other respects the provisions of this Act shall
mutatis mutandis apply to the interim municipal
Council and its councillors.
Section 359: Effect of absorption of Panchayat area
into smaller urban area:-
1. --Notwithstanding anything contained in this Act, if any
local area ceases to be a panchayat area by virtue of a
notification under section 4 of the Karnataka Panchayat
Raj Act, 1993 (hereinafter in this section referred to as
the said local area), and is absorbed in a smaller urban
area the following consequences shall ensue, namely:
a. the unexpended balance of the Grama Panchayat
Fund and the property (including arrears of rates,
taxes and fees) belonging to the Grama Panchayat
of the said local area (hereinafter referred to as the
Panchayat) and all rights and powers which prior to
such notification, vested in the Panchayat shall,
subject to all charges and liabilities affecting the
same, vest in the municipal Council of such smaller
urban area (herein referred to as the municipal
Council) as the municipal fund;
b. any appointment, notification, notice, tax, Order,
scheme, licence, permission, rule, bye-law or form,
made, issued, imposed or granted under the
Karnataka Panchayat Raj Act, 1993, immediately
before the said date in respect of the said local
area shall continue in force and be deemed to have
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been made, issued, imposed or granted in respect
of such smaller urban area until it is superseded or
modified by any appointment, notification, notice,
tax, Order, scheme, licence, permission, rule, bye-
law or form, made, issued, imposed or granted
under this Act;
c. all budget estimates, assessments, assessment
lists, valuations or measurements, made or
authenticated under the Karnataka Panchayat Raj
Act, 1993, immediately before the said date in
respect of the said local area shall be deemed to
have been made or authenticated under this Act;
d. all debts and obligations incurred and all contracts
made by or on behalf of the Panchayat immediately
before the said date and subsisting and on the said
date shall be deemed to have been incurred and
made by the municipal Council in exercise of the
powers conferred on it by this Act;
e. all officers and servants in the employ of the
Panchayat immediately before the said date shall
be officers and servants of the municipal Council
under this Act and shall, until other provision is
made in accordance with the provisions of this Act,
receive salaries and allowances and be subject to
the conditions of service to which they were
entitled or subject on such date:
Provided that it shall be competent to the municipal
Council, subject to the previous sanction of the
Government, to discontinue the services of any
officer or servant, who, in its opinion, is not
necessary or suitable to the requirements of the
municipal service after giving such officer or
servant such notice as is required to be given by
the terms of his employment and every officer or
servant whose services are disposed with shall be
entitled to such leave, pension, provident fund and
gratuity as he would have been entitled to take or
receive on being invalided out of service as if the
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Panchayat, in the employ of which he was, had not
ceased to exist;
f. all proceedings pending at the said date before the
Panchayat shall be deemed to be transferred to
and continued by the municipal Council;
g. all appeals pending before any authority shall, so
far as may be practicable, be disposed of as if the
said local area had been included in the smaller
urban area when they were filed;
h. all prosecutions instituted by or on behalf of the
Panchayat and all suits or other legal proceedings
instituted by or against the Panchayat or any
officer of the Panchayat pending at the said date
shall be continued by or against the municipal
Council as if the said local area had been included
in the smaller urban area when such prosecutions,
suits or proceedings were instituted;
i. all arrears of rates, taxes and fees, vesting in the
municipal Council shall, notwithstanding that such
rates, taxes, and fees cannot be levied under this
Act, be recoverable in the same manner as a tax
recoverable under Chapter VII;
j. until the reconstitution of the municipal Council in
accordance with the provisions of this Act,
notwithstanding anything to the contrary contained
in this Act, one person ordinarily resident in the
local area absorbed in the smaller urban area who
is nominated by the Government shall be an
additional councillor of the municipal Council.
Section 360: Effect of absorption of a part of a
panchayat area into a smaller urban area --If any
part of an area within the limits of a Grama Panchayat
is included in a smaller urban area, then,
notwithstanding anything contained in this Act or in
the 1 Karnataka Panchayat Raj Act, 1993 , but subject
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to the provisions of sub-section (3) of Section 4 of this
Act, the following consequences shall ensue, namely
a. so much of the Grama Panchayat Fund and other
property vesting in the Grama Panchayat shall be
transferred to the Municipal Fund as the Deputy
Commissioner may, by Order in writing, direct;
b. the rights and liabilities of the Grama Panchayat in
respect of civil and criminal proceedings, contracts,
and other matters or things (including arrears of
taxes, fees and cess) arising in or relating to any
part of the area included in the smaller urban area
shall vest in the municipal Council; and such rights
and liabilities may be enforced by or against the
municipal Council under this Act or the rules, bye-
laws and orders made thereunder;
c. such officers and servants of the Grama Panchayat
shall be transferred to the municipal Council as the
Government, by Order, direct;
d. if the area included is an area in which not less
than one thousand persons reside, until the
reconstitution of the municipal Council in
accordance with the provisions of this Act, one
person ordinarily resident in such area who is
nominated by the Government shall be an
additional councillor of the municipal Council.
14. Answer to Point No.1: Whether while
converting a Town Municipal area into a City
Municipal area, Panchayat could be added to
the said City Municipal Council?
14.1. Section 361 of the Act provides for the
conversion of a town municipal areas (TMC)
into city municipal areas (CMC). Thus, it
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would be clear that a town municipal area
(TMC) can be converted into a city
municipal area (CMC).
14.2. Section 359 of the Act speaks of the effect
of absorption of a panchayat area
(panchayat) into a smaller urban area, i.e.,
to say, a panchayat could either be
absorbed by a TMC or CMC. This would
indicate that such absorption is also
permitted.
14.3. Section 360 of the Act provides for the
absorption of a part of a panchayat area
into a smaller urban area. This would
establish and indicate that a part of the
Panchayat could be absorbed in either a
TMC or CMC.
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14.4. The peculiar question that arises in the
present facts is as to what would happen
when a TMC has been upgraded and
converted to a CMC and simultaneously two
entire panchayats and portions of two
pnachayats have also got absorbed into the
CMC.
14.5. There is no single provision in the Act which
refers to such a situation. The Act only
refers to each situation in particular and/or
isolation and not in combination. That
would not mean that such conversion and
absorption cannot happen simultaneously.
14.6. A new CMC being constituted, it would be in
the interest of everyone that the same is
done at one go rather than multiple stages.
Thus, we are of the considered opinion that
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there is no particular embargo for the
conversion of town municipal area (TMC)
into a city municipal area (CMC)
simultaneously the entire Panchayat or a
portion of Panchayat or both could be
absorbed into the CMC.
15. Answer to Point No.2: What would be the
status of the elected representatives of the
Town Municipal Corporation when the same
is converted into a City Municipal Council?
15.1. The status of TMC being converted into a
CMC is dealt with by Section 361 of the Act,
which CMC shall be constituted in terms of
Section 11 of the Act. Section 11 deals with
the number of councillors, number of
wards, reservation for SC/ST, reservation
for backward classes, reservation for
women etc.
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15.2. In Thyagarajan vs. State of Karnataka
[1986 SCC Online KAR 131], this Court
has held that when an election to a TMC is
held and the results are declared, Clause 3
of Section 361 of the Act would save the
notification of the election and the elected
representatives of the erstwhile TMC would
hold the same position under the new CMC.
Considering the above, we are of the
considered opinion that the elected
representatives of the TMC would continue
as members of the CMC so long as there is
no other addition made to the CMC apart
from TMC and it remains strictly a
conversion or upgradation of a TMC into a
CMC.
16. Answer to Point No.3: What would be the
status of the elected representatives of the
Panchayat when the Panchayat is merged
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with the newly formed City Municipal
Council?
16.1. A reading of Section 359 of the Act, which
deals with absorption of the Panchayat area
into a smaller urban area, would indicate as
if that though all other aspects, decisions,
notifications are saved, there is no such
saving of the elections of the Panchayat
members since Section 359 (1) (j) of the
Act which begins with a non-abstante
clause provides that notwithstanding
anything to the contrary contained in the
Act, one person ordinarily resident in the
local area absorbed in the smaller urban
area, can be nominated by the Government
shall be an additional councillor of the
municipal Council.
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16.2. This would indicate that any and all elected
members of the Panchayat would have
demitted their office and/or the Panchayat
would be deemed to have been dissolved
on its absorption in a smaller urban area
like CMC. In such a situation, irrespective
of size of the Panchayat, population of the
Panchayat and/or number of elected
panchayat members, the State Government
could nominate one local resident as an
additional Councillor.
16.3. Suffice to say that on such absorption of an
entire Panchayat with a TMC or CMC, one
person could be nominated as an additional
Councillor. Thus, all the elected
representatives of the Panchayat would
cease to function and/or hold office.
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16.4. Similar would be the situation in respect of
a part of the Panchayat area being
absorbed in a smaller urban area. There
could be only one nomination in terms of
Section 360 (d) of the Act.
17. Answer to Point No.4: Is the tenure of five
years sacrosanct, or could it be varied on
account of the merger and/or conversion
into a City Municipal Council?
17.1. It is not in all cases that elected
representatives can serve for five years.
Such a person could either be disqualified
prior to the expiry of five years or even the
Council could be dissolved before the expiry
of five years.
17.2. The Hon'ble Apex Court in the case of
State of Maharashtra vs. Deep Narayan
Chavan [(2002) 10 SCC 565] has held
that the dissolution of a council or a
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legislature is permissible in accordance with
the Act. The Apex Court once again in
State of Maharashtra vs. Jalgaon
Municipal Council [(2003) 9 SCC 731]
has held that Article 243-U of the
Constitution would apply only if the same
type of Municipality is taking over the
previous Municipality whose term has
expired and it would not apply when the
area of one description is being converted
to an area of another description.
Reference is to be made to Paras 21 and 22
thereof, which are hereunder reproduced
for easy reference.
21. Having heard the learned counsel for the
parties at length on this aspect, we are of
the opinion that the said hiatus is an
unavoidable event which must take place in
the process of conversion of a Municipal
Council into a Municipal Corporation.
Reliance on Article 243-U by the learned
counsel for the respondents in this context is
misconceived. The use of the expression "a
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Municipality" in sub-article (3) of Article 243-
U in the context and in the setting in which it
is employed suggests and means the
duration of the same type of Municipality
coming to an end and the same type of
successor Municipality taking over as a
consequence of the term of the previous
Municipality coming to an end. Article 243-U
cannot be applied to a case where the area
of one description is converted into an area
of another description and one description of
Municipality is ceased by constituting
another Municipality of a better description.
Article 243-U(3) cannot be pressed into
service to base a submission on that an
election to constitute a Municipal Corporation
is required to be completed before the expiry
of duration of a Municipal Council.
22. The Constitution of a Municipal
Corporation would require notification of
larger urban area and a Municipal
Corporation to govern it. The area shall have
to be divided into wards with the number of
corporators specified and reservations made.
The Corporation would need to nominate
Councillors. The territorial limits may need to
be altered. The State Election Commission
cannot conduct election without specifying
numbers and boundaries of wards. New
rules, bye-laws etc. shall need to be framed
and municipal tax structure may need to be
recast. The statutory provisions do not
contemplate a situation where the same area
may be called a smaller and larger area
simultaneously and process of Constitution
of a Municipal Corporation being commenced
and completed though the Municipal Council
continues to exist. Such an action would
result in anomaly and confusion if not chaos.
Care has been taken by the legislature by
engrafting Section 452-A into the body of
the BPMC Act by the Bombay Provincial
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Municipal Corporations (Amendment and
Validation) Act, 1995 (at Maharashtra Act 4
of 1995) which reads as under:
"452-A. Power of State Government to
appoint government officer or officers to
exercise powers and perform functions
and duties of Corporation.--
(1) For every Municipal Corporation
deemed to have been constituted or
constituted for a larger urban area
under sub-section (1) or sub-section (2)
as the case may be, of Section 3, the
State Government may appoint a
government officer or officers to
exercise all the powers and to perform
all the functions and duties of a
Corporation under this Act:
Provided that an Administrator appointed by
the State Government before 31-5-1994
under the provisions of this Act, as it existed
immediately before 31-5-1994, for a
Municipal Corporation deemed to have been
constituted for a larger urban area under
sub-section (1) of Section 3 who is in office
on the said date, shall be deemed to be the
government officer appointed under this sub-
section to exercise all the powers and
perform all the functions and duties of the
said Corporation under this Act.
(2) The officer or officers appointed under
sub-section (1) shall hold office until the first
meeting of the Corporation or for a period of
six months from the date of specification of
an area as a larger urban area, under sub-
section (2) of Section 3, whichever is earlier:
Provided that the Administrator deemed to
have been appointed as the government
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officer under sub-section (1) shall hold office
until the first meeting of the Corporation.
(3) The officer or officers appointed or
deemed to have been appointed under sub-
section (1) shall receive from the Municipal
Fund such pay and allowances as may be
determined, from time to time, by the State
Government."
17.3. Similarly the Madras High Court in the case
of P.Subbalakshmi vs. State of Tamil
Nadu [2007 SCC Online Madras 643]
has held that when various village
Panchayats are sought to be constituted or
reconstituted as town Panchayats, Article
243-E of the Constitution is not applicable
since an area of one description is being
converted to another description. Reference
could be made Paras 14, 15 and 16 of the
said decision, which are reproduced
hereunder for easy reference:
14. An argument was advanced by the
learned Senior counsel for the petitioner that
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the term of five years contemplated under
Article 243 E of the Constitution shall continue
for five years unless sooner dissolved under
Section 41 of the Act. Section 41 of the Act
says that if in the opinion of the State
Government the Municipality is not competent
to perform or persistently make default in
performing duties imposed on it by law or
exceed or abuse its powers, by notification
dissolve the Municipality from a specified date.
Exercise of power under Section 41 of the Act
depends on subjective satisfaction of the
Government. As rightly pointed out by the
learned Advocate General, Section 41 of the
Act cannot be equated with the upgradation of
Village Panchayat into Town Panchayat.
15. In and by the upgradation, the old body
coming to an end and same type of successor
municipality takes over. Article 243 E cannot
be applied to a case where an area of one
description is converted into another
description. Section 3 (CC)(1) of the Act
contemplates that notwithstanding anything
contained in this Act, the President and
Members of the Village Panchayat, who are
elected or deemed to have been elected and
holding office as such immediately before the
date of Constitution of such village panchayat
as town panchayat under this Act, shall be
deemed to be the Chairman and Members of
the Town Panchayat elected under this Act and
such Chairman and Members shall continue to
hold the office upto such date as the
Government may by notification fix in this
behalf or if no such date is fixed upto the date
on which their term of office would expire
under the Tamil Nadu Panchayat Act, 1994
and such Chairman and Members shall
exercise all powers and perform all duties
conferred on the Chairman and Members by or
under this Act. Thus, the person like the
Petitioner, holding the office immediately
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before the date of Constitution of such village
panchayat as town panchayat under this Act
deemed to exercise all power and performed
all duties until by notification the State
Government fixed the tenure. In this case, the
State Government of the view that instead of
appointing Government officers or
Administrator deemed it fit that the elected
representative of the Panchayat can continue
till the new body is constituted. The State
Government in exercise of power under
Section 3 CC (1) (a) of the Act issued G.O. Ms.
No. 91 dated 11.09.2006 thereby fixed the
tenure of the Chairman and Members of the
Special Village Panchayat upto 24.10.2006
and permitted them to hold the office till that
period, hence, this Court is of the view that
the said decision is perfectly valid.
16. The reason for fixing the date of tenure of
the office of the elected representatives like
the petitioner is the Government have decided
dated 14.07.2006 to re-constitute 561 Special
Village Panchayat as Town Panchayat and hold
election to all the Town Panchayats, including
the Courtlam Town Panchayat in one main
stream. Thus, the reasons for fixing the said
date is also validly explained.
17.4. The Uttarakhand High Court in Kamal Jora
vs. State of Uttarakhand, [2011 SCC
Online Utt 2381] has held that when two
municipal councils were sought to be
merged to create a municipal corporation,
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the dissolution of the municipal Council
would not be unconstitutional and/or
violative of Article 243-U of the
Constitution, merely because, the term of
the elected representatives of the municipal
Council was to be in force for a further
period of 2 years. Reference could be made
to Para 9 of the said decision, which is
reproduced hereunder for easy reference:
9. This Court was not in agreement with the
first contention of the petitioners regarding the
dissolution being unconstitutional before the
term of the councils had come to an end and
the Court had held that in a given contingency,
an elected municipal council can be dissolved
even prior to its term and a hiatus can be
created and it would not be unconstitutional.
This was done following the judgment of Hon'ble
Apex Court in State of Maharashtra v.
Jalgaon Municipal Council reported in
(2003) 9 SCC Page 731.
17.5. In view thereof, we are of the considered
opinion that the tenure of five years is not
sacrosanct as sought to be contended by
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the appellants herein. Depending on the
facts and circumstances like dissolution,
merger, upgradation, conversion, etc., the
said five years period would be reduced.
We are, however, of the opinion that where
there is no such conversion, absorption or
dissolution, the term/period of the
councillors would continue to be protected.
18. Answer to Point No.5: Whether nomination
as contained under Section 359(1) (j) and
360(d) of the Municipalities Act would be
sufficient to hold that there is an appropriate
representation of the merged Panchayat into
a City Municipal Council?
18.1. As could be seen in terms of Section 359
(1) (j) and Section 360 (d) of the Act, a
person normally resident within the
Panchayat could be nominated as an
additional Councillor to the smaller urban
area in which the said Panchayat is
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absorbed. As held by the learned Single
Judge, the nomination of a single person as
additional Councillor, on such absorption, to
be violative of Article 243-R of the
Constitution, since the said seat is not filled
by direct election but by way of nomination
there being no particular rules regarding
such nomination.
18.2. The learned Single Judge, the same would
also contravene Article 243-T of the
Constitution since such nomination could be
done without regard to the reservation
mandated under the Constitution. We are
also in agreement with the judgment of the
learned Single Judge inasmuch as the
nomination of an additional Councillor
cannot be said to be an adequate or
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appropriate representation of the merged
or absorbed Panchayat in the CMC.
19. Answer to Point No.6: Whether delimitation
exercise is to be carried out and reservation
roster finalized on such merger and
formation of City Municipal Council?
19.1. As observed above, Section 11 of the Act
provides for reservation of seats for SC/ST,
backward class, women etc. The number of
seats reserved must be in the same
proportion to the total number of seats to
be filled through direct elections as the
population of each of the above category in
that area. Section 13 of the Act provides for
delimitation of the wards for the purpose of
election of councillors. The said Section 13
of the Act is reproduced hereunder for easy
reference:
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Section 13: Wards for elections.-- 1. For the
purposes of election of councillors to be elected
to fill the seats under 1 [clause (a) of sub-
section (1)]1 of section 11, the Government
shall, [x x x] by notification determine
a. the number of territorial wards into which
the municipal area shall be divided;
b. the extent of each territorial ward ;
c. the number of seats allotted to each
territorial ward which shall be one [x x x] ;
and
d. the number of seats, if any, reserved for
the Scheduled Castes, Schedule Tribes,
Backward classes and for women in each
territorial ward .
[Provided that the territorial wards formed shall
comprise, as far as may be, of contiguous
blocks.
[(1A) No notification under sub-section (1) shall
be called in question in any court of law.]
19.2. In terms of the above, the State
Government is required to determine the
number and extent of territorial division,
number of seats allotted to each ward,
number of seats reserved etc. This
exercise of delimitation is required to be
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carried out so as to provide suitable,
adequate, and appropriate representation
for the residents of the said area. This
exercise of delimitation is required to be
carried out at the earliest.
19.3. The Hon'ble Apex Court in Atma Singh vs.
State of Punjab [(1981) 2 SCC 657 has
categorically held that whenever there is a
change in the limits of the Municipality,
elections cannot be held without
delimitation. Paras 6, 7 and 8 of the said
judgment is reproduced hereunder for easy
reference:
6. Whenever there is a change in the limits of a
municipality, the State Government cannot
proceed to hold election of Councillors without
delimitation of the Municipality into wards. The
delimitation of wards, a delicate and important
task, is entrusted to a Delimitation Board
constituted under Rule 3 of the Delimitation of
Wards of Municipalities Rules, 1972 and under
Rule 4 thereof it is the duty of the Delimitation
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Board to effect a redivision of a municipality.
That rule reads thus:
"4. Functions of the Board.--It shall be the
duty of the Board--
(i) to divide the Municipality into such number
of wards as may be necessary, having regard
to the number of elected members prescribed
by the State Government, for the Committee,
and the number of seats reserved for
members of the Scheduled Castes; and
(ii) to readjust the wards as and when the
limits of the Municipality are altered or there is
increase in population of the Municipality or
there is abnormal variation in population or
voting figures of some of the wards of the
Municipality, which requires, such
readjustment."
In the delimitation of wards, the Board must
observe the principles laid down in Rule 6,
namely, (1) all wards shall, as far as
practicable, be geographically compact areas,
and in delimiting them due regard shall be had
to physical features, existing boundaries of
administrative units, if any, facilities of
communication and public convenience; (2)
wards in which seats are reserved for the
Scheduled Castes shall be located, as far as
practicable, in those areas where the
proportion of their population to the total
population of the Municipality is the largest;
and (3) each Municipality shall be divided into
wards in such manner that the population of
each ward, as far as practicable, is the same
throughout the Municipality, with a variation
up to 10 per cent above or below the average
population figures. While making a redivision,
it may not be possible to achieve
mathematical perfection, but there must
definitely be a substantial compliance with the
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requirement that every person should have an
equal vote.
7. The whole purpose of delimitation of
municipalities into wards is to ensure that
every citizen should get a fair representation
in the municipalities. When a municipality is
reconstituted by the inclusion of any local area
within the limits of a municipality under sub-
section (3) of Section 5 or by the exclusion of
any local area from the limits of a municipality
under Section 7, i.e. when there is an
alteration of the limits of the Municipality,
there must of necessity be a division of the
reconstituted Municipality into new wards
without which the elections cannot be held.
There can be no disenfranchisement of a part
of the electorate of a municipality. The
question was dealt with at some length by the
Gujarat High Court in Bhaichandbhai Maganlal
Shah v. State of Gujarat [8 Guj LR 210 (Guj
HC)] and it was observed:
"It must follow logically and inevitably from
this proposition that the Constitution of
wards dividing the whole of the municipal
district is a sine qua non of a valid election.
If no wards at all are constituted, in the
municipal district, the machinery of election
cannot go through and equally the
machinery of election cannot go through if
wards are constituted in respect of a part
of the municipal district and the other part
is not divided into any ward or wards. In
such a case there would be lists of voters
for the wards which are constituted out of
a part of the municipal district but there
would be no lists of voters so far as the
other part of the municipal district is
concerned and no one from that part would
be qualified to vote or to stand as a
candidate for the election and no
Councillors being elected by that part,
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there would be no representation of that
part on the Municipality. Where such a
situation arises, it is difficult to see how the
Municipality can be said to be a
municipality for the whole of the municipal
district within the meaning of Section 9."
We approve of the view taken by the
Gujarat High Court.
8. There can be no dispute with the principle
that the State Government without
reconstituting a municipality into new wards,
cannot proceed to hold an election of
Councillors, when there is an extension of the
municipal limits, but the difficulty is about the
applicability of that principle to the facts of the
present case. There is no denying the fact that
the effect of the stay order passed by the
learned Single Judge staying the operation of
the notification issued under sub-section (3) of
Section 5 was to put the said notification in
abeyance, with the result that the local areas
to which it related were not brought within the
municipal limits. It is also an undisputed fact
that the stay order passed by the learned
Single Judge was in force from August 2, 1978
to October 23, 1978. It is, however, urged
that with the dismissal of the writ petition by
the learned Single Judge on October 23, 1978,
the impugned notification was brought into
effect and, therefore, the State Government
could not proceed with the election without
delimitation of wards and preparation of fresh
electoral rolls. We are afraid, the contention
cannot be accepted.
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19.4. Similar was of the view of the Hon'ble Apex
Court in State of Maharashtra vs.
Jalgaon Municipal Council (supra).
19.5. Thus, in the above circumstances, it is clear
that when the limits of a Corporation
and/or a municipality are changed, the
delimitation exercise is required to be
carried out in terms of Section 13,
reservation fixed in terms of Section 11 and
thereafter elections to be held.
20. Answer to Point No.7: Whether the
provisions of Section 358 of the Act could
apply to a newly formed City Municipal
Council by conversion of Town Municipal
Council and merger of panchayats is carried
out?
20.1. It has been contended by Sri. Jaykumar
S.Patil, learned Senior Counsel as also by
Sri. Dhyan Chinnappa, learned Senior
Counsel and Additional Advocate General
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that the provision of Section 358 would not
apply to a newly formed CMC, but it would
apply only if Panchayat is converted into a
smaller urban area. They contend that in
the present case, a Panchayat has been
merged with the CMC and not converted
into a CMC. Therefore, Section 358 would
not apply.
20.2. Such a contention by both the senior
counsel, if accepted, would lead to an
anomalous situation inasmuch as the
elected councillors to the TMC would
continue to be councillors of the CMC, the
Panchayat being dissolved, the term of the
elected Panchayat members would come to
an end. The Government would nominate
additional councillors in the place of the
Panchayat members who have vacated the
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office. Such nomination of additional
councillors would in our considered opinion
be in violation of Article 243-R and/or 243-
T of the Constitution.
20.3. The nomination and/or continuation of the
TMC as a CMC would be without
delimitation, without the creation of wards
fixing the reservation roaster and without
holding of elections; thereby, the area
which is got absorbed into the CMC would
not be adequately represented thereby
violating the basic tenets and principles of
democracy.
20.4. The appellants herein contend that the
elected body of the TMC would continue as
the elected body of the CMC whereas the
respondents contend that elected body of
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TMC stood dissolved with the conversion or
the absorption.
20.5. The learned Single Judge has rightly
applied Section 358 of the Act to address
the above anomaly, since, it is only Section
358 of the Act which would address such a
situation. We are in agreement with the
learned Single Judge and are of the opinion
that when there is a conversion of a TMC
into a CMC with the absorption of the
Panchayat happening at the same time,
then it is only Section 358 of the Act which
could be applied. In such a situation, the
elected representatives of the TMC and the
Panchayat would continue to operate as the
elected members of the CMC as interim
municipal councillors, and the State would
have to hold elections within a period of six
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months from such Constitution of an
interim municipal council.
20.6. Sri. Dhyan Chinnappa, learned Senior
Counsel and Additional Advocate General
has further contended that if elections are
held every time when there is a conversion
of a TMC to a CMC or absorption of a
Panchayat or a part of Panchayat, then the
political party in power, which is in
Government could resort to the above
methodology to dissolve a CMC or a TMC.
Though such a submission made would
offer challenges, we are of the considered
opinion that the concerned Government
would act in a mature manner and not
resort to the above. If such action is taken
for a malafide purpose or reason, the same
would always be amenable to judicial
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review. Merely because there is a
possibility of abuse of power, we can not
accede to the contention of Sri.Dhyan
Chinnappa, learned Advocate General. If
there is an abuse of power, the same can
always be agitated before the appropriate
forum.
20.7. It is therefore required that any conversion
of a TMC to a CMC and or merger of an
entire Panchayat area or a portion of
Panchayat in a TMC or CMC or the like, i.e.,
to say any action in terms of Sections 359,
360, 361 and 362 of the Act etc., would
have to be done within a period of at least
six months prior to the term of existing
TMC/CMC/Panchayat coming to an end so
that there is no such abuse of power
resorted to.
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20.8. In view of the above, we are of the
considered opinion that the only provision
which would be applicable to the present
case is Section 358 of the Act since the
exercise of powers under Section 359 (1)
(j) or Section 360 (d) would not serve the
purpose and more so, that Sections do not
provide for simultaneous exercise of powers
under those sections. In view thereof, we
hold that Section 358 would apply to newly
formed CMC by way of conversion of TMC
and merger of panchayats.
21. Answer to Point No.8: Does the judgment of
the learned Single Judge suffer from legal
infirmity requiring interference?
21.1. Coming to the facts of the case, it is seen
that the notification for up-gradation of the
TMC to CMC was issued only on
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27.06.2019, the notification to absorb
Arishinakunte and Basavanagudi gram
panchayats came to be issued on
26.12.2019, so also the notification to
absorb a part of Vajrahalli and
Vishveshwarapura into Nelamangala CMC
was issued on 26.12.2019. This is
subsequent to the election to the TMC,
which were held according to the appellants
in the early part of the year 2019 (though
no document has been produced in this
regard).
21.2. It is rather surprising that it is only after
the elections to the TMC were held in the
beginning of 2019 the aforesaid
notifications came to be issued, resulting in
the creation of a larger CMC, dissolving of
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Panchayats of 4 villages as also nomination
of additional councillors.
21.3. It is also not clear as to in what manner the
dissolution of the Panchayat of Vajrahalli
and Visveshwarapura have been effected
inasmuch as it is only a partial area of
Vajrahalli and Visveshwarapura which have
got merged/absorbed into the Nelamangala
CMC. The Government has also been silent
on this aspect in its appeal in WA
No.227/2021. We stop short of holding that
there are any malafides in the said
conversion/up-gradation of a TMC to a CMC
as also the absorption of two entire Gram
Panchayats and two partial Gram
Panchayats since we do not believe that a
Government would act in such a manner.
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21.4. The learned Single Judge has considered all
these aspects and has come to a reasoned
conclusion that Section 358 of the Act
would be applicable and an interim Council
would come into being for a period of six
months and thereafter elections have to be
held to the newly formed CMC after
carrying out delimitation exercise and fixing
the reservation roaster i.e., fulfill the
requirement of Sections 11 and 13 of the
Act. This in our considered opinion was the
only proper order that could have been
passed in the given facts and
circumstances. More so, when the say of
the Councillors of the erstwhile
Nelamangala TMC is that they were
continued to be councillors for a period of
five years from the time of the constitution
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of the CMC and the Panchayats could only
be represented by the Additional
Councillors nominated by the Government
in the said period of 5 years.
21.5. As aforestated the population of the TMC
was less than 40,000. The TMC had 23
wards represented by 23 councillors or that
the CMC coming into being the population
stood increased to more than 70,000. Thus
30,000 additional population would be
represented only by four additional
councillors who are nominated by the
Government. As aforestated, such an
action by the Government is anathema to
the concept of democracy. 30,000 people
who are added to the CMC have a right to
be represented by a person of their choice.
Democracy being a Government of the
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people, by the people, for the people, the
same gets violated if the contention of the
Government is accepted. The Government
ought to have realised the consequence of
such a decision before taking the said
decision. These aspects ought to have
been considered, necessary legal opinion
obtained and thereafter, a decision was
required to be taken. The learned
Additional Advocate General has not been
able to support the decisions of the
Government by any cogent reasons or
provision of law. In such circumstances,
the learned Single Judge has rightly held
that the elections would have to be held in
respect of the newly constituted CMC. We
do not find any reason to interfere with the
same. The time fixed by the learned Single
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Judge for holding the election is extended
by a period of two months from the date of
receipt of certified copy of this order.
22. Be that as it may, there are certain protective
steps to be taken in this regard so as to prevent
any such occurrence in the future. Hence, we
issue the following directions:
22.1. Any conversion/up-gradation of a TMC to a
CMC would have to be done in such a
manner that the entire process is
completed much before six months of term
of the present Council coming to an end.
Once elections are held, no such
conversion/up-gradation to be done till the
end of the term when such exercise can be
taken up, though the process could be
taken up at the time nearing the end of the
term so as to complete it within the above
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said six months prior to the end of the
term.
22.2. Any conversion/up-gradation of a
Panchayat to a TMC to be done in such a
manner that the entire process is
completed within six months prior to the
due date of the election. Once elections
are held, no such conversion/upgradation
to be done, till the end of the term of the
present Panchayat, though the process
could be taken up at the time nearing the
end of the term so as to complete it within
the above said six months prior to the end
of the term.
22.3. Any absorption of a TMC into a CMC to be
done in such a manner that the entire
process is to be completed within six
months prior to the due date of the
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election. Once elections are held, no such
conversion/up-gradation to be done till the
end of the term of the present Council,
though the process could be taken up at
the time nearing the end of the term so as
to complete it within the above said six
months prior to the end of the term.
22.4. Any absorption of a Panchayat (whole or
part) to be done in such a manner that the
entire process is to be completed within six
months prior to the due date of the
election. Once elections are held, no such
conversion/up-gradation to be done till the
end of the term of the present Council,
though the process could be taken up at
the time nearing the end of the term so as
to complete it within the above said six
months prior to the end of the term.
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22.5. The delimitation exercise to be carried out
at least five months prior to the elections;
22.6. Reservation of seats to be carried out at
least four months prior to the elections.
23. Answer to Point No.9: What Order?
23.1. In the result, the Writ Appeal stands
dismissed by affirming the order dated
05.01.2021 passed by the learned Single
Judge in W.P.No.11725/2020 c/w
W.P.No.6398/2020.
Sd/-
JUDGE
Sd/-
JUDGE
Prs*
