The National Election Commission vs Sri Yusuf Sharif
2021 Latest Caselaw 5993 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF DECEMBER, 2021

                          PRESENT

       THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                            AND

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

          WRIT APPEAL NO. 1349 OF 2021(LB-ELE)

BETWEEN:

1. THE NATIONAL ELECTION COMMISSION
NIVARVACHAN BHAVAN,
ASHOK ROAD, NEW DELHI-110001
REPRESENTED BY ITS SECRETARY

2. THE DEPUTY COMMISSIONER AND
ELECTORAL OFFICER
BENGALURU URBAN DISTRICT CONSTITUENCY,
K G ROAD, BENGALURU-560009
                                           ...APPELLANTS
(BY SRI.M.DHYAM CHINNAPPA, SR.ADVOCATE FOR
SRI.DODWAD SHARASCHANDRA RAMESH, ADVOCATE)

AND:

1. SRI YUSUF SHARIF
S/O DASTAGIR SHARIF,
AGED ABOUT 56 YEARS,
NO.22/1, KAVERIYAPPA LAYOUT,
NEAR MAHAVEER JAIN HOSPITAL,
VASANTHANAGAR, BENGALURU-560052
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2. SRI JANARDHAN M
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT NO.214/D, BAHADURPURA,
ANEKAL, BENGALURU URBAN DISTRICT-562106

3. SRI MANJUNATH K
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT 3/52, WARD NO.1, KUMBARPET,
ANEKAL, BENGALURU URBAN DISTRICT-562106

4. SRI SUDHA JAIDHAV K
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT NO.45, WARD NO.2, THIGALARPET,
ANEKAL, BENGALURU URBAN DISTRICT-562106

5. SRI JAGADISH R
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT NO.5, WARD NO.1, JANAPARA BEEDHI,
ANEKAL, BENGALURU URBAN DISTRICT-562106

6. SRI NITHIN V
S/O FATHER NAME NOT KNOWN,
AGED MAJOR,
R/AT NO.164/01, NEAR LINCON SCHOOL,
SHANKAR LAYOUT, WARD NO.1, ANEKAL,
BENGLURU URBAN DISTRICT-562106

7. SRI K PRABHAKAR
S/O LATE KRISHNAPPA,
AGED MAJOR,
R/AT ANEKAL ROAD, NEAR BEERESHWARA
SWAMY TEMPLE, KUMARA LAYOUT,
ATTIBELE, ANEKAL TALUK,
BENGALURU URBAN DISTRICT-562107
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8. SRI K NATARAJ
S/O KRISHNAPPA,
AGED MAJOR,
R/AT ANEKAL ROAD, NEAR BEERESHWARA
SWAMY TEMPLE, KUMARA LAYOUT,
ATHIBELE, ANEKAL TALUK,
BENGALURU URBAN DISTRICT-562107

9. SRI M VENKATESHA REDDY
S/O MUNIRAJAPPA,
AGED MAJOR,
R/AT NO.831, POST OFFICE ROAD
NEAR BASAVESHWARA TEMPLE, ATHIBELE
ANEKAL TALUK, BENGALURU URBAN DISTRICT-562107

10. SRI NARASIMHA SWAMY
S/O MUNIYAPPA,
AGED MAJOR,
R/AT NO.410, BHUVANESHWARI NAGARA,
ATHIBELE ANEKAL TALUK,
BENGALURU URBAN DISTRICT-572107

11. SRI A M RAJAPPA
S/O MUNIYAPPA,
AGED MAJOR,
R/AT NO.265, JAGAJIVBANRAO NAGARA,
ATHIBELE, ANEKAL TALUK,
BENGALURU URBAN DISTRICT-562107

12. SRI RAGHU
S/O B SUBBAIAH,
AGED MAJOR,
R/AT NO.60, MUTHURAYAPPA TEMPLE STREET,
BOMMASANDRA ANEKAL TALUK,
BENGALURU URBAN DISTRICT-560099

13. SRI PRAKASH
S/O G RAMAREDDY,
AGED MAJOR,
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R/AT NO.72/2, ANNANYA NILAYA,
BOMMASANDRA ANEKAL TALUK,
BENGALURU URBAN DISTRICT-560099

14. SRI B R PRASANNA KUMAR
S/O T RAMAREDDY,
AGED MAJOR,
R/AT NO.130, BANAHALLI VILLAGE,
CHANDAPURA POST, BOMMASANDRA ANEKAL TALUK,
BENGALURU URBAN DISTRICT-560099

15. SRI PRAVEEN KUMAR B M
S/O LATE MALLAREDDY,
AGED MAJOR,
R/AT NO.60, BANAHALLI VILLAGE,
CHANDAPURA POST, BOMMASANDRA,
ANEKAL TALUK, BENGALURU URBAN DISTRICT-560099

16. SRI K S PRADEEP
S/O S SRINIVASAIAH,
AGED MAJOR,
RETIRED HEADMASTER,
R/AT KITHAGANAHALLI VILLAGE,
BOMMASANDRA ANEKAL TALUK,
BENGALURU URBAN DISTRICT-560099

                                            ...RESPONDENTS

(BY SRI.B.N.SURESH BABU, ADVOCATE FOR R1;
NOTICE TO R2 TO 16 DISPENSED WITH
AS PER ORDER DTD: 13.12.2021)

     THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO A. QUASH THE IMPUGNED INTERIM
ORDER DATED 09.12.2021 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P. NO. 22478/2021 AND B. ISSUE ANY OTHER ORDER
OR DIRECTIONS, THE HONBLE COURT DEEMS FIT, IN THE FACTS
AND CIRCUMSTANCES OF THE CASE.
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    THIS APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF
JUSTICE DELIVERED THE FOLLOWING:

                         JUDGMENT

Heard Sri. Dhyan Chinnappa, learned Senior Counsel

appearing for Sri.Dodwad Sharaschandra Ramesh, learned

counsel for appellants as well as Sri.B.N. Suresh Babu, learned

counsel for respondent No.1.

2. Respondent No.2 to 16 are the respondents in the

writ petition and as such they are proforma respondents and

notice to them is dispensed with.

3. This intra Court appeal has been filed challenging

the interim order dated 9.12.2021 passed by the learned

Single Judge in W.P.No.22478/2021 whereby the learned

Single Judge as an interim measure has provided that the

elections to Bangalore Urban Local Authorities Constituency for

the Legislative Council shall go on, the respondents 3 to 17

will be permitted to vote in the elections, the votes cast by

private respondents shall be placed in a sealed cover and the

result of the elections of the Bangalore Urban Local Authorities

Constituency shall not be declared without the leave of the

Court, a special ballot box be kept for the voting of the private

respondents and such votes be kept in sealed cover. The

emergent notice to respondents returnable by 20.12.2021 has

been issued. The hand summons has also been permitted and

the case has been directed to be next listed on 20.12.2021 for

further hearing.

4. The learned counsel for the appellants submits that

it was argued before the writ Court that in view of the bar

under Article 329 of the Constitution of India, the writ petition

after issuance of notification for election for Legislative Council

was not maintainable. It is also submitted that Article 243R of

the Constitution of India has no applicability to the elections of

the Legislative Council. The Article 243R of the Constitution of

India relates to composition of Municipalities. In any case,

proviso to sub-clause(2) of Article 243R provides that only the

persons referred to in paragraph (i) shall not have the right to

vote in the meetings of the Municipality. The contention is

that it does not mean that such persons would not have the

right to vote. It is also contended that in the earlier elections

of the Legislative Council, the nominated members of the

Municipalities have participated in the election and casted their

votes.

5. The learned counsel for respondent No.1, on the

other hand, submits that Article 243R of the Constitution of

India clearly debars the persons who are nominated to the

Municipalities to participate and cast their votes in the

meetings of the Municipalities. These persons can participate

in the day to day functioning of the Municipalities, however,

they cannot cast their votes in the meetings of the

Municipalities. The submission is once they do not have any

right to vote in the meetings of the Municipalities then, they

cannot be given the right to vote in the Legislative Council

elections. It is submitted that what is not provided in the

Constitution cannot be taken to be granted under the

Karnataka Municipalities Act. The submission is that under

Section 11 of the Karnataka Municipalities Act, 1964(for short

"the Act") constitution of Municipal Councils is provided.

Under Section 11(1)(b)(i) and (ii) of the Act, persons having

special knowledge and experience in municipal administration

or matters relating to health, town planning or education or

social workers can be nominated by the Government from

among the residents of the municipal area and their number

shall not be more than five. It is submitted that restrictions

have been imposed on the numbers of nominated members as

well as their rights under the Act itself. As such, the question

before the writ Court was their right to vote in the Legislative

Council elections. It is also submitted that since the writ

petition was filed prior to issuance of the notification for

elections, it goes to the root of the constitution of the voters'

list and as such it was maintainable.

6. We have considered the submissions and gone

through the records.

7. Prima facie, we are of the considered view that the

question of participation of nominated members of the

Municipalities in the Legislative Council elections was the main

question before the writ Court which was required to be

adjudicated finally and as such, there was no case for the

interim relief. Since the writ petition is pending, we do not

want to give any finding on the arguments made by either

party before us. We, therefore, modify the order dated

9.12.2021 passed by the learned Single Judge to the extent

that the election to the Bangalore Urban Local Authorities

Constituency for Legislative Council shall go on

uninterruptedly. The nominated members who are

respondents 3 to 17 in the writ petition can participate in the

election and cast their votes. The result of the election of

Bangalore Urban Local Authorities Constituency shall be

declared, but, it shall be subject to the final decision in the

writ petition.

8. With these observations, the writ appeal is disposed

of.

The pending interlocutory applications, if any, stand

disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

*alb/-