Karnataka High Court
The Chief Secretary vs Yallappa Shivasharanappa ... on 13 January, 2023
Bench: K.S.Mudagal, Anil B Katti
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE ANIL B KATTI
WRIT APPEAL NO.200028/2022 (LB-ELE)
C/W
WRIT APPEAL NO.200037/2022 (LB RES)
WRIT APPEAL NO.200185/2022 (LB RES)
WRIT APPEAL NO.200186/2022 (LB RES)
IN W.A.NO.200028/2022
BETWEEN:
1. THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA, DR.AMBEDKAR VEEDHI
BENGALURU - 560 001
2. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA, DR.AMBEDKAR VEEDHI
BENGALURU - 560 001
BY ITS PRINCIPAL SECRETARY ... APPELLANTS
(BY SRI PRABHULING NAVADGI, ADVOCATE GENERAL &
SRI.Y.H.VIJAYA KUMAR, ADDL. ADVOCATE GENERAL A/W
SRI.MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE)
AND:
YELLAPPA
S/O SHIVASHARANAPPA NALKODI
AGED ABOUT 59 YEARS
OCC : CORPORATOR
W.A.No. 200028/2022 C/W
-2- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
CITY CORPORATION, KALABURAGI
R/O EKALVYA VIDYALAYA SCHOOL
SHIVASHAKTINAGAR,
TAJ SULTANPUR ROAD
KALABURAGI - 585 104 ... RESPONDENT
(BY SRI.N.B.DIWANJI, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 04.02.2022 IN W.P.NO.202488/2021 PASSED BY
THE LEARNED SINGLE JUDGE IN THE INTERESTS OF JUSTICE AND
EQUITY.
IN W.A.NO.200037/2022
BETWEEN:
1. MUNIRAJU GOWDA P M
AGED ABOUT 44 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.27/1, TULASI VASANTHPURA MAIN ROAD
KONANAKUNTE CROSS, DODDAKALLASANDA
BENGALURU - 560 062
2. LEHAR SINGH SIROYA
AGED ABOUT 74 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.145, 9TH CROSS, 3RD MAIN
RMV 2ND STAGE, HIG COLONY, VTC
BENGALURU NORTH - 560 094
3. BHARATI SHETTI
AGED ABOUT 61 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.F-4, 2ND FLOOR
"SAI KRISHNA", CANARA BANK COLONY
BENGALURU SOUTH - 560 061
4. SAVADI LAKSHMAN
S/O SANGAPPA
AGED ABOUT 62 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.985, OPP. SMS COLLEGE
SATTI ROAD, ATHANI
BELGAUM - 518 123
W.A.No. 200028/2022 C/W
-3- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
5. RAGHUNATH RAOMALKAPURE
AGED ABOUT 63 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.19-1-166
SHIVANAGAR, BIDAR - 585 401 ... APPELLANTS
(BY SRI AMEET KUMAR DESHPANDE, SR. COUNSEL FOR
SRI.GOWRISH S KHASHAMPUR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIDHANA SOUDHA,
BENGALURU - 560 001
BY ITS SECRETARY
2. THE REGIONAL COMMISSIONER
KALABURAGI DIVISION
KALABURAGI - 585 102
3. THE COMMISSIONER
CITY MUNICIPAL CORPORATION
KALABURAGI - 585 102
4. THE ASSISTANT COMMISSIONER
KALABURAGI - 585 102
5. SHAIK AJMAL AHEMED AFZAL GOLA
AGED ABOUT 40 YEARS
OCC: CORPORATOR, WARD NO.21
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.E-1-980, NEW JEWARGI ROAD
NEAR AMBA BHAVANI TEMPLE
KALABURAGI - 585 102
6. SACHIN SHIRWAL
AGED ABOUT 32 YEARS
OCC: CORPORATOR, WARD NO.44
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.LIG 28, MSK MILL ROAD
NEAR HANUMAN TEMPLE, SHANTINAGAR
KALABURAGI - 585 103
7. LATA RAVINDRA KUMAR
AGED ABOUT 46 YEARS
W.A.No. 200028/2022 C/W
-4- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
OCC: CORPORATOR, WARD NO.49
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.1-933, ADARSH MARG
OLD JEWARGI ROAD, VISHALNAGAR
4TH CROSS, TARFILE, KALABURAGI - 585 102
8. SMT.ANUMAPA
W/O RAMESH KAMAKNOOR
AGED ABOUT 37 YEARS
OCC: CORPORATOR, WARD NO.22
KALABURAGI MUNICIPAL CORPORATION
R/O CHOWDESHWARI COLONY, BRHMPUR
KALABURAGI - 585 102 ...RESPONDENTS
(BY SRI PRABHULING NAVADGI, ADVOCATE GENERAL &
SRI.Y.H.VIJAYA KUMAR, ADDL. ADVOCATE GENERAL A/W
SRI.MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE FOR R1,
R2 & R4; SRI.D.P.AMBEKAR, ADVOCATE FOR R3;
SRI.MAHADEV S PATIL, ADVOCATE FOR C/R5 TO R8)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 04.02.2022 IN W.P.NO.200347/2022 PASSED BY
THE LEARNED SINGLE JUDGE IN THE INTERESTS OF JUSTICE AND
EQUITY
IN W.A.NO.200185/2022
BETWEEN:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA, BENGALURU - 01
REPTD. BY ITS SECRETARY
2. THE REGIONAL COMMISSIONER
KALABURAGI DIVISION
KALABURAGI - 585 102
3. THE ASSISTANT COMMISSIONER
KALABURAGI - 585 102 ... APPELLANTS
(BY SRI PRABHULING NAVADGI, ADVOCATE GENERAL &
SRI.Y.H.VIJAYA KUMAR, ADDL. ADVOCATE GENERAL A/W
SRI.MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE)
W.A.No. 200028/2022 C/W
-5- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
AND:
1. SMT.HEENA BEGUM
W/O ABDUL RAHEEM
AGED ABOUT 27 YEARS
OCC: CORPORATOR, WARD NO.10
KALABURAGI MUNICIPAL CORPORATION
R/O SHAIK ROJA, ALAND ROAD
KALABURAGI- 585 104
2. THE COMMISSIONER
CITY MUNICIPAL CORPORATION
KALABURAGI - 585 102 ...RESPONDENTS
(BY SRI A M NAGARAL, ADVOCATE FOR C/R1;
SRI.D.P.AMBEKAR, ADVOCATE FOR R2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 04.02.2022 IN W.P.NO.200346/2022 AND GRANT
SUCH OTHER OR FURTHER RELIEF OR RELIEFS AS THIS COURT
MAY DEEM FIT, IN THE CIRCUMSTANCES OF THE CASE.
IN W.A.NO.200186/2022
BETWEEN:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA
BENGALURU - 01
REPTD. BY ITS SECRETARY
2. THE REGIONAL COMMISSIONER
KALABURAGI DIVISION
KALABURAGI - 585 102
3. THE ASSISTANT COMMISSIONER
KALABURAGI - 585 102 ... APPELLANTS
(BY SRI PRABHULING NAVADGI, ADVOCATE GENERAL &
SRI.Y.H.VIJAYA KUMAR, ADDL. ADVOCATE GENERAL A/W
SRI.MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE)
W.A.No. 200028/2022 C/W
-6- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
AND:
1. SHAIK AJMAL AHEMED AFZAL GOLA
AGED ABOUT 59 YEARS
OCC: CORPORATOR, WARD NO.21
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.E-1-980, NEW JEWARGI ROAD
NEAR AMBA BHAVANI TEMPLE
KALABURAGI - 585 102
2. SACHIN SHIRWAL
AGED ABOUT 31 YEARS
OCC: CORPORATOR, WARD NO.44
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.LIG 28, MSK MILL ROAD
NEAR HANUMAN TEMPLE, SHANTINAGAR
KALABURAGI - 585 103
3. LATA RAVINDRA KUMAR
AGED ABOUT 45 YEARS
OCC: CORPORATOR, WARD NO.49
KALABURAGI MUNICIPAL CORPORATION
R/O H NO.1-933, ADARSH MARG
OLD JEWARGI ROAD, VISHALNAGAR
4TH CROSS, TARFILE
KALABURAGI - 585 102
4. SMT.ANUMAPA
W/O RAMESH KAMAKNOOR
AGED ABOUT 36 YEARS
OCC: CORPORATOR, WARD NO.22
KALABURAGI MUNICIPAL CORPORATION
R/O CHOWDESHWARI COLONY, BRHMPUR
KALABURAGI - 585 102
5. THE COMMISSIONER
CITY MUNICIPAL CORPORATION
KALABURAGI - 585 102
6. MUNIRAJU GOWDA P M
AGED ABOUT 45 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.27/1, TULASI VASANTHPURA MAIN ROAD
KONANAKUNTE CROSS, DODDAKALLASANDA
BENGALURU - 560 062
W.A.No. 200028/2022 C/W
-7- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
7. LEHAR SINGH SIROYA
AGED ABOUT 75 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.145, 9TH CROSS, 3RD MAIN
RMV 2ND STAGE, HIG COLONY, VTC
BENGALURU NORTH - 560 094
8. BHARATI SHETTI
AGED ABOUT 60 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.F-4, 2ND FLOOR
"SAI KRISHNA", CANARA BANK COLONY
BENGALURU SOUTH - 560 061
9. SAVADI LAKSHMAN
S/O SANGAPPA
AGED ABOUT 61 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.985, OPP. SMS COLLEGE
SATTI ROAD, ATHANI, BELGAUM - 518 123
10. RAGHUNATH RAO MALKAPURE
AGED ABOUT 62 YEARS
OCC: MEMBER OF LEGISLATIVE COUNCIL
R/O NO.19-1-166, SHIVANAGAR
BIDAR - 585 401 ... RESPONDENTS
(BY SRI.MAHADEV S PATIL, ADVOCATE FOR C/R1 TO R4;
SRI.D.P.AMBEKAR, ADVOCATE FOR R5;
SRI AMEET KUMAR DESHPANDE, SR. COUNSEL FOR
SRI.GOWRISH S KHASHAMPUR, ADVOCATE FOR R6 TO R10)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE DATED 04.02.2022
PASSED IN WRIT PETITION NO.200347/2022 (LB-RES) AND GRANT
SUCH OTHER OR FURTHER RELIEF OR RELIEFS AS THIS COURT
MAY DEEM FIT, IN THE CIRCUMSTANCES OF THE CASE.
THESE WRIT APPEALS PERTAINING TO KALABURAGI BENCH
HAVING BEEN HEARD AND RESERVED ON 13.12.2022 COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, K.S.MUDAGAL J.,
W.A.No. 200028/2022 C/W
-8- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
SITTING AT PRINCIPAL BENCH THROUGH VIDEO CONFERENCING
DELIVERED THE FOLLOWING:
JUDGMENT
These matters relate to the election of Mayor and
Deputy Mayor of Kalaburagi Municipal Corporation. Kalaburagi
Municipal Corporation consists of 55 wards. Each ward is
represented by a Corporator. The elections to the Corporation
were being held once in every five years. After the election of
the Councillors, two amongst them will be elected as the
Mayor and Deputy Mayor of the City Corporation.
2. The General Elections of the Councillors to the
Kalaburagi Municipal Corporation was held on 06.09.2021. In
that election, 23 Corporators were elected from Bharatiya
Janata Party, 27 Corporators were elected from Indian
National Congress, 4 Corporators were elected from Janatha
Dal (Secular) and one Corporator was elected as independent
candidate.
3. The posts of Mayor and Deputy Mayor of various
Municipal Corporation in the State of Karnataka were being
filled up in accordance with the provisions of the Karnataka
Municipal Corporations Act, 1976 ('the KMC Act' for short),
W.A.No. 200028/2022 C/W
-9- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
Karnataka Municipal Corporations (Elections) Rules, 1979 ('the
KMC Election Rules' for short) and Guidelines issued by the
State Government from time to time.
4. Section 10(1A) of the KMC Act provides for making
reservations to the posts of Mayor and Deputy Mayor of the
City Corporations in the State to the persons belonging to the
Scheduled Castes, Scheduled Tribes, Backward Classes and
Women.
5. Article 243T of the Constitution of India (Clause 4
and 5) provides for making reservation in favour of women on
rotation basis and Section 421(1) of the KMC Act empowers
the Government to make rules regarding election on
reservation. Accordingly the State Government has been
issuing guidelines on notifications every year regarding
allotment of offices of Mayor and Deputy Mayor to various
categories by rotation. The latest of such guidelines were
issued under Government Order No.UDD 92 MLR 2014 dated
27.08.2014 keeping in view Article 243T of the Constitution of
India, Section 421(1) of the KMC Act, the KMC Election Rules
and the order of the Supreme Court dated 01.02.2013 in SLP
W.A.No. 200028/2022 C/W
-10- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
3909-3910 of 2003 and the order dated 13.02.2013 in
W.P.(Civil)No.89/2013, modifying the guidelines dated
04.05.2013 regarding the reservation of the posts of Mayor
and Deputy Mayor for various categories by rotation in
Municipal Corporations in Karnataka.
6. Accordingly, the State Government issued
notifications dated 01.01.2018, 03.09.2018, 26.12.2019 and
11.02.2021 allotting the offices of Mayor and Deputy Mayor in
all 11 city Corporations in Karnataka. So far as Kalaburagi
Municipal Corporation, the allotment of offices of Mayor and
Deputy Mayor as per the reservations for respective terms
were as follows:
Date of Term Mayor Deputy Mayor
Notification
01.01.2018 XX Term Gen(Women) Gen(Women)
03.09.2019 XXI Term Scheduled General
caste
26.12.2019 XXII Term Scheduled Backward
caste caste-A
11.02.2021 XXIII Term Gen(Women) Backward
caste-B
7. Though the notifications of 2018, 2019 and 2021
were issued allotting the posts of Mayor and Deputy Mayor to
certain categories, such reservations so far as Kalaburagi,
W.A.No. 200028/2022 C/W
-11- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
Vijayapura and Bidar Municipal Corporations became the
subject matter of W.P.No.204314/2018 and connected
matters. Due to such litigation, the elections of Mayor and
Deputy Mayor of Kalaburagi Municipal Corporations were not
conducted for the said terms.
8. Ultimately as per the notification dated
11.02.2021 the Regional Commissioner of Kalaburagi region
issued notice dated 06.11.2021 convening the meeting on
20.11.2021 at 12.30 hours. In the said notice, it was notified
that the post of Mayor and Deputy Mayor for 23rd term is
reserved for General Women and Backward Class-B. By the
notice dated 16.11.2021 Regional Commissioner postponed
the election of Mayor and Deputy Mayor to be held on
20.11.2021 on the ground that the Election Commission of
India has notified the elections of the Members Of Legislative
Council.
9. On 27.01.2022 the Regional Commissioner issued
another notice convening the meeting on 05.02.2022 at 12.30
hours for electing Mayor and Deputy Mayor to Kalaburagi
Muncipal Corporation. In that notice, the Regional
W.A.No. 200028/2022 C/W
-12- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
Commissioner said that the election was going to be held for
XXI Term as per the notification dated 03.09.2018 and the
posts of Mayor and Deputy Mayor were reserved for
candidates of Scheduled caste and general category.
10. The first respondent in W.A.No.200028/2022 by
name Yellappa filed W.P.No.202488/2021 before the learned
Single Judge for quashing of the notification dated 11.02.2021
so far the same relates to Mayor and Deputy Mayor of
Kalaburagi Municipal Corporation to the category of General
Women and Backward Class B and writ of mandamus against
the appellants in W.A.No.200028/2022 to hold elections for
Mayor and Deputy Mayor and member of Standing
Committees as per the guidelines under Government Order
dated 27.08.2014. He contended that the notification dated
11.02.2021 deprives the post to Scheduled Tribe category to
which he belongs to and that amounts to discrimination.
11. As per Section 7(1) of the KMC Act, the persons
competent to vote in the election to the Mayor and Deputy
Mayor are elected Councillors, Members of Legislative
Assembly and Members of Parliament representing the
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W.A.No.200185/2022,
W.A.No.200186/2022
Constituency in the said municipal area and the Members of
Legislative Council. As on the notification dated 06.11.2021,
there were 55 elected Councilors and 8 members of
Lokasabha, Rajyasabha, Vidhanasabha and Vidhana Parishat.
They were the voters for electing Mayor and Deputy Mayor.
12. After postponement of the election, the appellants
in W.A.No.200037/2022 who were the members of Legislative
Council filed applications before the Electoral Registration
Officer/Assistant Commissioner Kalaburagi for inclusion of
their names in electoral roll of Kalaburagi Assembly
Constituency. On 08.11.2021 the petitioners in
W.P.Nos.200346-347/2022 filed objections to those
applications. The Assistant Commissioner by order dated
27.12.2021 after holding the enquiry allowed the applications
rejecting the objections and included the appellants in the
Electoral roll of Kalaburagi city. Consequently, the Regional
Commissioner included their names at Sl.Nos.64 to 68 as the
voters to the election of Mayor and Deputy Mayor and the
same was enclosed to the notice dated 27.01.2022.
W.A.No. 200028/2022 C/W
-14- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
13. W.P.Nos.200346-47/2022 were filed for quashing
of the notice dated 27.01.2022 issued by the Regional
Commissioner and mandamus against the State and the
Regional Commissioner to continue the election of Mayor and
Deputy Mayor as per the earlier calendar of events dated
06.11.2021. It was contended that those 5 persons were
neither residents of Kalaburagi nor representing Kalaburagi in
the Assembly and they were included in the voters list with
the oblique motive that the members of the Indian National
Congress party are not elected as the Mayor and Deputy
Mayor. It was also contended that the roster was changed
illegally. The learned Single Judge connected
W.P.No.202488/2021 with W.P.Nos.200346-347/2022 and
took up them for disposal together.
14. The learned Single Judge formulated following two
points for consideration:
i) Whether the writ petitions are maintainable under
Article 227 of the Constitution of India ?;
ii) Whether the impugned notification dated 27.01.2022
is as per Section 10 of the KMC Act?
W.A.No. 200028/2022 C/W
-15- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
15. The learned Single Judge referring to several
judgments held that the impugned notifications are subject to
judicial review. The learned Single Judge further held that
though inclusion of 5 other members in the voters list is
appealable, since those respective petitioners have not filed
any appeal, the writ petition is maintainable.
16. The learned Single Judge by the impugned
common judgment allowed the writ petitions and quashed the
entire notification dated 11.02.2021 issued by the
Government and notice/notification dated 27.01.2022 issued
by the Regional Commissioner convening the meeting on
05.02.2022. The learned Single Judge further directed
the Regional Commissioner to allot the office of the Deputy
Mayor to Kalaburagi Municipal Corporation in terms of the
guidelines issued by the State Government as per Section
10(1A) of the KMC Act and to continue the election of Mayor
and Deputy Mayor from the stage it was interrupted as per the
voters list dated 06.11.2021.
W.A.No. 200028/2022 C/W
-16- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
17. For the purpose of convenience, hence forth the
writ petitioners will be referred to as 'Councillors'. Challenging
the order of the learned Single Judge in W.P.No.202488/2021
the State has preferred W.A.No.200028/2022. Similarly
challenging the order in 200346-47/2022 the State has
preferred W.A.Nos.200185-200186/2022. Challenging the
order in W.P.No.200347/2022 the Members of Legislative
Council ('MLC's for short) have filed W.A.No.200037/2022. It
is material to note that W.A.No.200346/2022 the petitioner
therein though challenged the inclusion of the names of 5
other Members of Legislative Council had not impleaded them
as party respondents in that case. Therefore, they have not
preferred any appeal against the order in that writ petition.
Submissions of Sri Prabhuling Navadgi, Learned
Advocate General:
18. Though the notification dated 03.09.2018,
26.12.2019 and 11.02.2021 were issued allotting the posts of
Mayor and Deputy Mayor to the candidates of certain
categories from XXI Term to XXIII Term, admittedly due to
the circumstances which were beyond the control of the State
W.A.No. 200028/2022 C/W
-17- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
i.e., on account of the pending litigations, the elections to the
Posts of Mayor and Deputy Mayor were not held to Kalaburagi
Municipal Corporation. In the light of that, the reservations
allotted to the posts of Mayor and Deputy Mayor for the XXI
term of Kalaburagi Municipal Corporation were not achieved.
Therefore, that was to be carried forward. The Regional
Commissioner without properly understanding that, under the
notice dated 06.11.2021 had notified the reservation as per
the XXIII Term. In similar situation, the Regional
Commissioners of some other Corporations also sought the
clarification from the Government. The Government by letter
No.NAE 206 MLR 2021(e) dated 25.01.2022 addressed to
Commissioner, Hubli-Dharwad, Belgaum and Kalaburagi
Corporations clarified that the election to the Mayor and
Deputy Mayor of those corporations was held up to 2018 as
per the reservation provided for the XX term. In the year
2019 and 2020, in view of the pending litigations elections
were not conducted. It was further said that since the election
to those three Corporations as per the reservation for the XXI,
XXII and XXIII terms was not conducted, the elections have to
be conducted as per the reservation provided to them in the
W.A.No. 200028/2022 C/W
-18- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
XXI term. Therefore, the XXI term was carried forward.
Though the same was clarified, the learned Single Judge
without even referring to that held that the elections were not
held in accordance with Section 10 of the KMC Act which is
unsustainable. Similarly the candidates at Sl.Nos.64 to 68 in
the voters list were included in accordance with law and the
said order of Assistant Commissioner was appealable.
Admittedly some persons had already filed appeal against
such orders. In view of such effective, alternative remedy the
writ petition was not maintainable. It is settled law that the
Courts shall not interfere in the election process once the
notification is issued. In quashing the notifications and
directing to continue the election from 06.11.2021, the
learned Single Judge has acted contrary to the judgments of
the Supreme Court. Admittedly after 06.11.2021, the terms
of some of the MLCs were over and new MLCs were elected.
Therefore, holding the elections as per voters list on
06.11.2021 amounts to retaining the ineligible persons and
dropping the eligible persons to vote.
W.A.No. 200028/2022 C/W
-19- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
19. In support of his submissions he relies on the
following judgments:
i) Shaji K.Joseph vs. Viswanath and others 1
ii) West Bengal State Election Commission and
others vs. Communist Party of India (Marxist)
and others2
iii) State of Goa and another vs. Fouziya Imtiyaz
Shaikh and another3
Submissions of Sri Ameet Kumar Deshpande,learned
senior counsel for Sri Gourish S.Khashampur, learned
counsel on record for the appellant in
W.A.No.200028/2022:
20. He reiterated the contentions raised by the learned
Advocate General with regard to the maintainability of the writ
petitions and failure of the learned Single Judge to refer to the
documents and the facts submitted by them.
21. In support of his submissions he relies on the
judgment of the Hon'ble Supreme Court in P.T.Rajan vs.
TPM Saher4.
(2016)4 SCC 429
(2018)18 SCC 141
(2021)8 SCC 401
(2003)8 SCC 498
W.A.No. 200028/2022 C/W
-20- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
Submissions of Sri A.M.Nagral and Sri Mahadev S.Patil,
learned counsel for respondents/Elected Councillors
22. Once the process of election is commenced, that
shall not be interrupted. In these cases the Government and
the Regional Commissioner on issuing the notification dated
06.11.2021 changed the reservations to the post of Mayor and
Deputy Mayor as well as the list of voters contrary to the
judgment of the Hon'ble Supreme Court in S.T.Muthuswamy
vs.K.Natarajan and others5. Therefore, learned Single Judge
was justified in quashing the notification dated 11.02.2021,
the notification of the Regional Commissioner dated
27.01.2022 and directing them to continue the process of
election from the stage it was interrupted. The said order
warrants no interference.
23. In support of their submissions, they rely on the
following judgments:
i) K. Channaiah & others vs. State of Karnataka &
ors6
(1988)1 SCC 572
2000 SCC Online Kar 379
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W.A.No.200186/2022
ii) Manohar Parappa Rakkasagi vs. State of
Karnataka and ors7
iii) Lakshmikanth K. vs. The State of Karnataka
and ors8
24. On consideration of rival submissions and material
on record the following two questions arise for consideration:
(i) Whether the learned Single Judge was justified in
quashing the notification dated 11.02.2021 issued
by the Government regarding reservation to the
post of Mayor and Deputy Mayor of Kalaburagi
Municipal Corporation for the XXIII term?
(ii) Whether the learned Single Judge was justified in
quashing the notification dated 27.01.2022 issued
by the Regional Commissioner for holding election
to the post of Mayor and Deputy Mayor of
Kalaburagi Municipal Corporation?
Reg. Reservation of posts under Notification dated
11.02.2021:
25. Article 243T of the Constitution of India provides
for reserving seat of Councilors, Mayors and Deputy Mayors,
Chairpersons for the Scheduled Castes, the Scheduled Tribes
WA No.101175/2016 DD 22.11.2016
W.P.No.4457/2022 (LB ELE) DD 18.04.2022
W.A.No. 200028/2022 C/W
-22- W.A.No.200037/2022,
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W.A.No.200186/2022
and Women in every Municipal Corporation/Municipality.
Article 243T reads as follows:
"243T. Reservation of seats.--(1) Seats shall be
reserved for the Scheduled Castes and the Scheduled
Tribes in every Municipality and the number of seats so
reserved shall bear, as nearly as may be, the same
proportion to the total number of seats to be filled by
direct election in that Municipality as the population of the
Scheduled Castes in the Municipal area or of the
Scheduled Tribes in the Municipal area bears to the total
population of that area and such seats may be allotted by
rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of
seats reserved under clause (1) shall be reserved for
women belonging to the Scheduled Castes or, as the case
may be, the Scheduled Tribes.
(3) Not less than one-third (including the number
of seats reserved for women belonging to the Scheduled
Castes and the Scheduled Tribes) of the total number of
seats to be filled by direct election in every Municipality
shall be reserved for women and such seats may be
allotted by rotation to different constituencies in a
Municipality.
(4) The offices of Chairpersons in the Municipalities
shall be reserved for the Scheduled Castes, the
Scheduled Tribes and women in such manner as the
Legislature of a State may, by law, provide.
(5) The reservation of seats under clauses (1) and
(2) and the reservation of offices of Chairpersons (other
than the reservation for women) under clause (4) shall
cease to have effect on the expiration of the period
specified in article 334.
(6) Nothing in this Part shall prevent the
Legislature of a State from making any provision for
reservation of seats in any Municipality or offices of
Chairpersons in the Municipalities in favour of backward
class of citizens."
26. In view of the powers conferred under Article
243T(4), T(6) of the Constitution, the State Government has
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W.A.No.200186/2022
made provision for reservation for the post of Mayors and
Deputy Mayors under Section 10(1A) of the KMC Act. Section
10(1A) reads as follows:
"10. Mayor and Deputy Mayor.-
(1)1[Subject to the provisions of sub-section (1A) the
Corporation]1 shall, at its first meeting after a general
election of councillors and at its first meeting in the
same month in each year thereafter, elect,-
(a) one of its concillors 2[referred to in clause (a)
of sub-section (1) of section 7]2 to be the Mayor, and
(b) one other councillor 2[referred to in clause
(a) of sub-election (1) of section 7] 2 to be the Deputy
Mayor.
1. Substituted by Act 35 of 1994 w.e.f.
1.6.1994.
2. Inserted by Act 35 of 1994 w.e.f. 1.6.1994.
[(1A) There shall be reserved by the Government in
the prescribed manner,-
(a) such number of officers of Mayor and Deputy
Mayor in the State, for the persons belonging to the
Scheduled Castes and Scheduled Tribes and the
number of such offices shall bear as nearly as may
be, the same proportion to the total number of offices
in the State as the population of Scheduled Castes in
the State or of the Scheduled Tribes in the State
bears to the total population of the State;
(b) such number of offices of Mayor and
Deputy Mayor in the State which shall as nearly as
may be, one third of the total number of offices of the
Mayor and Deputy Mayor in the State for the persons
belonging to the Backward Classes;
[Provided that out of the offices reserved
under this clause eighty percent of the total number
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of such offices shall be reserved for the persons
falling under category "A" and the remaining twenty
percent of the offices shall be reserved for the
persons falling under category "B".
Provided further that if no person falling under
category "A" is available, the offices reserved for that
category shall also be filled by the persons falling
under category "B" and vice-versa.]1
[Provided also that the number of offices of
Mayor and Deputy Mayor reserved for the backward
classes under this clause shall be so determined that
the total number of offices of Mayor and Deputy
Mayor reserved for the scheduled castes and the
scheduled tribes under clause (a) and the backward
classes under this clause shall not exceed fifty
percent of the total number of offices of Mayor and
Deputy Mayor of the City Corporations in the State.]
1. Inserted by Act 25 of 1995 w.e.f. 26.9..1995.
2. Substituted by Act 32 of 2012 w.e.f. 30.8..2012.
(c)2[not more than fifty percent of the total
number of offices of Mayor and Deputy Mayor]2 in the
State from each of the categories reserved for
persons belonging to Scheduled Castes, Scheduled
Tribes and Backward Classes and those which are
non-reserved, for women:
Provided that the offices reserved under this
sub-section shall be allotted by rotation in the
prescribed manner."
27. Reading of above provision shows that such
reservation shall not exceed 50% of total number of offices of
Mayors and Deputy Mayors in the State. Section 71 of the
KMC Act provides for the jurisdictional Regional Commissioner
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W.A.No.200185/2022,
W.A.No.200186/2022
conducting the first meeting of the Corporation after the
General Election of the Councillors.
28. Section 421 of the KMC Act empowers the State
Government to make rules by notification to carry out the
purpose of the Act. Acting under Section 421 of the KMC Act,
the State Government notified the Karnataka Municipal
Corporations (Elections and Miscellaneous Provisions) Rules,
1977. On framing KMC (Election) Rules, 1979, the Karnataka
Municipal Corporations (Elections and Miscellaneous
Provisions) Rules, 1977 were repealed by Rule 91 of KMC
Election Rules. KMC Election Rules were amended from time to
time. Rules 71 to 76 of KMC Election Rules deal with the
procedure for holding the elections for Mayor, Deputy Mayors
and the Members of the Standing Committee. The said Rules
empower the jurisdictional Regional Commissioner to conduct
the Election of Mayors, Deputy Mayors in the first or any
subsequent meeting of the Corporation.
29. From 1995 till the year 2012, the offices of Mayor,
Deputy Mayor in the City Corporation were reserved on the
basis of the Karnataka Municipal Corporation (Elections) Rules,
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W.A.No.200185/2022,
W.A.No.200186/2022
1995 and 1997. This Court in W.P.No.39675/2004 and
connected matters by order dated 08.11.2004 held that the
reservation by rotation shall be clear, definitely ascertainable
and fixed one. In view of such order, the Government issued
the Guidelines for reservation under Government Order
No.UDD 92 MLR 2014 Bangalore dated 27.08.2014. Guideline
Nos.(i) to (iv) and (ix) which are relevant for the purpose of
this case read as follows:
"(i) Such numbers of offices of Mayors/Deputy Mayors
in the City Corporations shall be reserved for SC/ST.
Backward Class (A & B) and Women as per Rule 73-A
of the Karnataka Municipal Corporations (Election)
Rules, 1979.
(iv) The reservation of the offices of Mayors/ Deputy
Mayors in City Corporations in favour of SC/ST
candidates in the State shall be determined by the
Govemment based on the highest percentage of SC/ST
population with reference to the total population of the
City concerned as per Rule 73-A (2) of Kamataka
Municipal Corporation (Election) Rules, 1979. The
ULBs shall be arranged on the basis of decreasing
percentage of population of SC/ST as the case may be
while making such allotment.
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W.A.No.200186/2022
(ix) The sequence in the process of reservation of
offices of Mayors and Deputy Mayors in City
Corporations shall be as under;
a) Every Corporation shall be arranged in a decreasing
order of percentage of SC population. Thereafter
Reservation for the Scheduled Caste shall be done on
rotation based upon declining population of Scheduled
Castes.
b) A similar exercise shall be followed for ST category
i.e. every Corporation shall be arranged in a
decreasing order percentage of ST population and
thereafter reservation for ST shall be done on the
basis of rotation.
c) Thereafter a combined list of all Corporations in
alphabetical order in English language shall be
prepared indicating the points fixed for SCW/ST/SC/
STW as per (a) & (b) above. Next allotment of seats
for other categories shall he as per following cycle
BCAW-> G ->BCBW - >G ->BCA ->GW->BCB.
d) The proceedings shall be drawn up indicating the
reasons for reservation of seats in respect of each
category of the offices of Mayor and Deputy Mayor of
City Corporation wise.
30. Based on the above Guidelines, the State has
prepared a statement indicating the rotation of the roster to
the offices of the Mayor, Deputy Mayor of the Municipal
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W.A.No.200185/2022,
W.A.No.200186/2022
Corporations based on the population data as per 2011
census. Upto 2017/XX Term, the quota of the roster was
achieved. The trouble started in 2018-2019/XXI Term
onwards. The quota fixed for 2018-2019 and 2020-2021 was
as follows:
Date of Term Mayor Deputy Mayor
Notification
01.01.2018 XX Term Gen(Women) Gen(Women)
03.09.2019 XXI Term Scheduled General
caste
26.12.2019 XXII Term Scheduled Backward
caste class-A
11.02.2021 XXIII Term Gen(Women) Backward
class-B
31. Admittedly, due to the pendency of
W.P.No.204314/2018 and connected matters from XXI Term
onwards the Elections to the posts of Mayors and Deputy
Mayors were not held. Therefore, the roster of XXI Term was
carried forward. The writ petitioners/Yellappa and Heena
Begum do not dispute the reservation under the aforesaid
notifications dated 03.09.2018 and 26.12.2019. It is not even
their case that those notifications were contrary to the 2014
Guidelines. Their only grievance was that they were not given
representation in the notification dated 11.02.2021 issued by
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the jurisdictional Regional Commissioner. It is their further
contention that the notification dated 06.11.2021 and
27.01.2022 vary from each other so far as reservation,
therefore the notification dated 27.01.2022 is illegal.
32. The writ petitioners also do not dispute that the
Election Commission of India notified the Elections to the post
of Members of Legislative Council in Karnataka. Therefore no
malafides can be attached to the notification dated 16.11.2021
issued by the Regional Commissioner postponing the Election
scheduled to be held on 20.11.2021 under the notice dated
06.11.2021.
33. It is the case of the State that the notification
dated 06.11.2021 was issued XXIII Term under misconception
and without noticing that the reservations under the
notifications dated 03.09.2018, 26.12.2019 were not
achieved. It is the contention of the appellants that in view of
the clarification given by the State under the letter dated
25.01.2022 to the Regional Commissioners regarding non
achievement of XXI Term's quota, the notification dated
27.01.2022 rectifying the error was issued.
W.A.No. 200028/2022 C/W
-30- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
34. The writ petitioners also do not dispute that from
XXI Term onwards the quota was not achieved. They did not
even challenge 2014 Guidelines or the notifications dated
03.09.2018 and 26.12.2019. They do not even demonstrate in
the petition how those Government notifications and the
Regional Commissioner's notification dated 27.01.2022 defeat
2014 Guidelines or Article 243T of the Constitution or Section
10(1A) of the KMC Act.
35. The notification dated 11.02.2021 not only related
to Kalaburagi Municipal Corporation, but that covered the
Corporations of Bellari, Belagavi, Davanagere, Hubballi,
Dharwad, Mangalore, Mysore, Shivamoga, Tumkur and
Vijayapura. The petitioners in W.P.Nos.200346-347 of 2022
had not even sought quashing of the notification dated
11.02.2021. The petitioner in W.P.No.202488/2022 had
sought quashing of the notification dated 11.02.2021 only so
far it relates to Kalaburagi Municipal Corporation. It is
submitted that the Elections to the other Corporations
mentioned in the notification dated 11.02.2021 were held.
Therefore the notification dated 11.02.2021 has spent out its
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-31- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
life so far it relates to the other Municipal Corporations
mentioned therein. However, the learned Single Judge
quashed the entire notification which affects the Elections to
the other Municipal Corporations mentioned therein. That itself
shows non-application of mind of the learned Single Judge.
36. Apart from the aforesaid facts, the roster of each
Municipal Corporation for each term has been so arranged that
such reservation does not exceed 50% for the entire State.
Any meddling with the roster so fixed imbalances that 50%
principle. The learned Single Judge did not notice that aspect
also.
37. The major part of the impugned order is devoted
to discuss various judgments of the Hon'ble Supreme Court
and this Court. Even in S.T.Muthuswamy's case referred to
supra relied on by the learned Single Judge, the Hon'ble
Supreme Court in para 14 refers to a Full Bench judgment
wherein it was held as follows:
"14. In the ultimate analysis, the Full Bench laid down:
"12. There is no constitutional bar to the excise of writ
jurisdiction in respect of elections to Local Bodies such as,
Municipalities, Panchayats and the like. However, as it is
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-32- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
desirable to resolve election disputes speedily through the
machinery of election petitions, the Court in the exercise
of its discretion should always decline to invoke its writ
jurisdiction in an election dispute, if the alternative
remedy of an election petition is available. So, their
Lordships of the Supreme Court in Sangram Singh v.
Election Tribunal, Kotah, AIR 1955 SC 425 stated:
though no legislature can impose limitations on these
constitutional powers it is a sound exercise of discretion
to bear in mind the policy of the legislature to have
disputes about these special rights decided as speedily as
may be. Therefore, writ petitions should not be lightly
entertained in this class of cases."
(emphasis supplied)
38. Ultimately in para 15 of the judgment, the Hon'ble
Supreme Court held that it accepts the statutory principle that
writ petition should not be lightly entertained in such class of
cases. In the other judgments relied on by the learned Single
Judge himself it was held that non interference of the Court in
the process of election is a rule and interference is only an
exception.
39. The learned Single Judge holds that before
changing the quota under the Regional Commissioner's
notification dated 27.01.2022 from the notification dated
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W.A.No.200185/2022,
W.A.No.200186/2022
06.11.2021 the same should have been notified to the public
and objections should have been called for. As already pointed
out under the notification dated 27.01.2022 the roster was not
changed, but only XXI Term's roster was carried forward.
Therefore there was no need to notify the same to the public
and call for the objections.
40. The learned Single Judge without considering all
the aforesaid factual aspects jumped to the conclusion that
the notifications dated 11.02.2021 and 27.01.2022 are
violative of Article 243T of the Constitution and Section 10(1A)
of the KMC Act. The records show that the learned Single
Judge disposed of the matters when the same were listed in
orders and not even at the stage of preliminary hearing.
Probably, such haste led the learned Single Judge's failure to
consider the material facts of the case.
41. The larger Bench of the Hon'ble Supreme Court in
the latest judgment in Fouziya Imtiaz Shaikh's case referred
to supra referring to Article 243ZA of the Constitution has held
that the writ Courts must adopt a hands off policy when the
election process is on, unless interfering with such order
W.A.No. 200028/2022 C/W
-34- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
absolves and facilitates the progress of election. It was also
held that no election to any municipality can be called in
question, except by election petition. In para 68 of the said
judgment the Guidelines were laid down. Paras 68(5) to (9) of
the said judgment are relevant for the purpose of this case
which read as follows:
68.5. Judicial review of a State Election
Commission's order is available on grounds of review
of administrative orders. Here again, the writ court
must adopt a hands-off policy while the election
process is on and interfere either before the process
commences or after such process is completed unless
interfering with such order subserves and facilitates
the progress of the election.
68.6. Article 243-ZA(2) makes it clear that the
law made by the legislature of a State, making
provision with respect to matters relating to or in
connection with elections to municipalities, is subject
to the provisions of the Constitution, and in
particular Article 243-T, which deals with reservation
of seats.
68.7. The bar contained in Article
243ZG(a) mandates that there be a judicial hands-off
of the writ court or any court in questioning the
validity of any law relating to delimitation of
constituency or allotment of seats to such
constituency made or purporting to be made
under Article 243ZA. This is by virtue of the non-
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W.A.No.200186/2022
obstante clause contained in Article 243ZG. The
statutory provisions dealing with delimitation and
allotment of seats cannot therefore be questioned in
any court. However, orders made under such statutory
provisions can be questioned in courts provided the
statute concerned does not give such orders the status
of a statutory provision.
68.8. Any challenge to orders relating to
delimitation or allotment of seats including
preparation of electoral rolls, not being part of the
election process as delineated above, can also be
challenged in the manner provided by the statutory
provisions dealing with delimitation of constituencies
and allotment of seats to such constituencies .
68.9. The constitutional bar of Article
243ZG(a) applies only to courts and not the State
Election Commission, which is to supervise, direct and
control preparation of electoral rolls and conduct
elections to municipalities.
(Emphasis supplied)
42. The larger Bench of the Supreme Court in para 29
of the West Bengal State Election Commission's case
referred to supra while emphasizing that there shall not be
any interference in the election process held as follows:
29. There is merit in the submission that the
discipline which is mandated by the provisions of the
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W.A.No.200185/2022,
W.A.No.200186/2022
Constitution and enforced by the enabling state law
on the subject must be maintained. Any dispute in
regard to the validity of the election has to be
espoused by adopting a remedy which is known to
law, namely through an election petition. It is at the
trial of an election petition that factual disputes can be
resolved on the basis of evidence. This principle has
been consistently adhered to in decisions of this Court.
In Boddula Krishnaiah (supra), a three Judge bench,
adverted to the decisions of the Constitution Bench in
NP Ponnuswami v Returning Officer, Namakkal
Constituency and in Lakshmi Charan Sen v AKM
Hassan Uzzaman. After referring to Ponnuswamy, it
was observed:(Boddula Krishnaiah,SCC pp.419-20,
para8)
"8. In N.P Ponnuswamy v Returning Officer,
Namakkal Constituency a Constitution Bench of this
Court had held that having regard to the important
functions which the legislatures have to perform in
democratic countries, it has always been recognised to
be a matter of first importance that elections should
be concluded as early as possible according to time
schedule and all controversial matters and all disputes
arising out of elections should be postponed till after
the elections are over so that the election proceedings
may not be unduly retarded or protracted. In
conformity with the principle, the scheme of the
election law is that no significance should be attached
to anything which does not affect the 'election'; and if
any irregularities are committed, while it is in progress
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and they belong to the category or class which under
the law by which elections are governed, would have
the effect of vitiating the 'election'; and enable the
person affected to call it in question, they should be
brought up before a special tribunal by means of an
election petition and not be made the subject of a
dispute before any court while the election is in
progress." The binding principle must be followed.
(Emphasis supplied)
43. In the light of the aforesaid judgments and the
facts and circumstances discussed above, the other judgments
relied on by the Counsel for the Councillors cannot be
justifiably applied to the facts and circumstances.
Reg. Electoral Roll:
44. The petitioners in W.P.Nos.200346-347/2022
challenged the notification dated 27.01.2022 on the ground
that the inclusion of the names of the appellants in
W.A.No.200037/2022 in the Electoral Roll. When the Regional
Commissioner issued first notification dated 06.11.2021 the
names of the said appellants were not included in the Electoral
Roll. The elections of Mayor and Deputy Mayor were
postponed under the notification dated 16.11.2021 on the
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W.A.No.200185/2022,
W.A.No.200186/2022
ground that Election Commission of India has scheduled the
election of Members of Legislative Council.
45. On 14.12.2021 the appellants in
W.A.No.200037/2022 were elected as new members of
Legislative Council. On 08.11.2021 the said appellants and
four others filed application before the Electoral Registration
Officer/Assistant Commissioner, Kalaburagi. 11 persons
objected the application of the said appellants. Out of them 4
were held to be eligible objectors and were heard by the
Electoral Registration Officer. Rejecting their objections the
aforesaid appellants' names were included in the Electoral list.
46. Though W.P.Nos.200346-200347/2022 were filed
for quashing the notification dated 27.01.2022 on the ground
of inclusion of the new electors, in W.P.No.200346/2022 the
said electors were not arrayed as parties. On that count itself
the said prayer in the writ petition should have been
dismissed. In W.P.No.200347/2022 though the newly included
electors were made parties, only the Electoral Roll Annexure-G
was sought to be quashed. The orders of the Electoral Officer
dated 27.12.2021 for including the names of the said five
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-39- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
persons were not sought to be quashed. It is material to note
that Annexure-G included 55 Councillors and 7 Members of the
Parliament and Council of States and members of Legislative
Assembly and members of Legislative Council. The learned
Single Judge by the impugned order quashed Annexure-G the
entire Electoral list. Thereby the Councillors, Members of
Parliament and State Legislative Council were also removed
from the list. That itself shows the non-application of the
mind.
47. The order of the Electoral Registration Officer
passed under Rule 20 of the Registration of the Electors Rules,
1960 is appeable under Rule 23 of the said Rules. Section 7 of
KMC Act which speaks of Constitution of Corporation reads as
follows:
"7. Constitution of the Corporation .- (1) The
Corporation shall consist of,-
(a) such number of elected councillors not being
less than thirty and not more than two hundred as the
Government may, by notification, determine"; and
(b) not exceeding ten percent of the total number
of Councillors in the case of Bruhat Bangalore
Mahanagara Palike and not more than five persons in
the case of other City Corporations nominated by the
Government from amongst the residents of the city,-
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-40- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
(i) who are persons having special knowledge and
experience
in municipal administration or matters relating to
health, town planning or education; or
(ii) who are social workers;
(c) the members of the Houses of People and the
members of the State Legislative Assembly
representing a part or whole of the city whose
constituencies lie within the city
(d) the members of the Council of State and
State Legislative Council who are registered
as electors within the city:
Provided that the persons referred to in
clause (b) shall not have right to vote in the
meetings of the Corporation."
48. The above provisions go to show that the
members of Council of States and State Legislative council are
also part of the Corporation. The rider of the elected
representatives having constituency in the city as per Section
7(c) applies only to the members of Legislative Assembly and
Members of Lokasabha. Such rider is not there in Section
7(1)(d) with regard to the members of Council of State and
State Legislative Council. Similarly the proviso to Section 7(1)
bars the right to vote in the meetings of the Corporation only
for the members covered in clause 7(1)(b) i.e., the nominated
persons. Even the petitioners in W.P.No.200346-347/2022 did
W.A.No. 200028/2022 C/W
-41- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
not dispute that position. But, their only contention is that the
said newly included electors were not the residents of
Kalaburagi city and they had manipulated the rent agreements
etc for the purpose of their enrolment and consequently to see
that the members of rival political party are not elected as
Mayor and Deputy Mayor. Whether those documents were
genuine or not and whether they were ordinary residents of
Kalaburagi city or not were the disputed questions of fact.
Such questions cannot be considered in the writ jurisdiction.
That was to be decided by the appellate forum under Rule 23
of the Registration of Electors Rules, 1960.
49. By the time the writ petitions were filed, the
appeals were already pending before the Appellate Authority
under Rule 23. It was faintly contended that the
Commissioner/Appellate authority had not decided the appeal.
Again there was no material to show that such appeal was
pursued by the appellants therein. If the appeal was not
decided, it was open to the said appellants to seek writ of
mandamus against the appellate authority.
W.A.No. 200028/2022 C/W
-42- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
50. Further, the inclusion in the voters list was made
before the issue of notification dated 27.01.2022 i.e., before
the commencement of the process of election. The learned
Single Judge quashed only the voters list and not the orders of
the Electoral Registration Officer, thereby the order of the
Registration Officer still remained operative.
51. In the light of the above said facts and
circumstances, in quashing the notice dated 27.01.2022 and
the voters list the learned Single Judge acted contrary to the
judgments of the Hon'ble Supreme Court in Fouzia Imtiaz
Shaikh's case and West Bengal Election Commission's
case.
52. For the aforesaid reasons the appeals deserve to
be allowed. Hence the following:
ORDER
I) W.A.No.200028/2022, W.A.No.200037/2022,
W.A.No.200185/2022 and W.A.No.200186/2022
are hereby allowed with costs.
W.A.No. 200028/2022 C/W
-43- W.A.No.200037/2022,
W.A.No.200185/2022,
W.A.No.200186/2022
II) The impugned order of the learned Single Judge
dated 04.02.2022 in W.P.No.202488/2021 and
W.P.Nos.200346-347/2022 is hereby set aside.
III) W.P.No.202488/2021 and W.P.Nos.200346-
347/2022 are hereby dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
AKC/KSR
