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2014 DIGILAW 292 (KAR)

Kiran Krishnarao Saynak v. State of Karnataka

2014-03-03

ARVIND KUMAR

body2014
Judgment :- 1. Petitioners are seeking for a writ of mandamus to 2nd respondent not to permit the members of the Legislative Assembly, Members of House of people, to vote and participate in the process of elections of the Mayor and Deputy Mayor for the 4th respondent- Corporation of the City of Belgaum for the year 2013 and henceforth. 2. I have heard the arguments of Sriyuts D.Ravikumar Gokakakar, learned counsel appearing for the petitioners, A.G.Maldar, learned HCGP appearing for respondent Nos. 1 and 2, Aravind D. Kulkarni, learned counsel appearing far respondent No.4. Respondent No.3 is served and unrepresented. Perused the case papers. 3. It is the contention of Sri. Ravikumar Gokakakar that members of the legislative assembly, legislative council and members of the house of people are not the elected members of the Corporation and as such, they cannot vote in the elections held to the post of the Chairman or the Mayor or the Deputy Mayor of the Municipal Council or Municipal Corporations as the case may be. He submits that it is only the elected representatives, namely councilor as defined under Section 2(7) of the Karnataka Municipal Corporation Act, 1967 ('K.M.C. Act' for short) who would form the electoral college to elect the chairman Mayor or Deputy Mayor and the members of the Legislative Assembly, Legislative Council as well as Members of the House of People have no right to participate in such election process. He would also draw the attention of the Court to deletion of Section 9 of the K.M.C. Act to contend that, by virtue of the said Section having been omitted by Act 35 of 1994, it would indicate that participation of members of the Assembly or the members of the council or Members of House of people stood excluded and as such, they have no right of participation in the election process of electing Mayor or Deputy Mayor. 4. 4. Elaborating his submissions, he would submit that, proviso to clause (d) of sub Section (1) of Section 7 of the K.M.C. Act would indicate that persons referred to in clause (b) of sub Section (1) of Section 7 of the K.M.C. Act have been excluded to vote in the meetings of Corporation who are the nominated members, and as such it cannot be gain said that these members would be entitled to participate in the election process of electing Mayor or Deputy Mayer of Municipal Corporation. He would also refer to Rule 72 D of the K.M.C. (Election) Rules, 1979 which prescribes the procedure for elections to the post of Mayor and Deputy Mayor, whereunder only Councillors are permitted to participate. 5. Per contra, learned advocates appearing for respondents would support the right of elected representatives, namely MLA's MP's and MLC's to participate in the election of Mayor and Deputy Mayor by taking umbrage under Section 7 (1)(c) of the K.M.C. Act and as such, they pray for dismissal of the writ petition. It is contended that Member of House of People and the Members of the State Legislative Assembly representing part or whole of the City whose constituencies lie within the City as amended are empowers them to participate in the election of Mayor or Deputy Mayor as per Section 7(l)(c). Likewise, members of the House of People and Member of the State Legislative Assembly representing a part or whole of the city as per Section 7(1) (d) of KMC Act. 6. Section 2(7) of the K.M.C. Act defines a Councillor to mean 'a Councillor referred to in Section 7. Section 7 of the K.M.C. Act would defines the constitution of a Corporation and it reads as under: 7. 6. Section 2(7) of the K.M.C. Act defines a Councillor to mean 'a Councillor referred to in Section 7. Section 7 of the K.M.C. Act would defines the constitution of a Corporation and it reads as under: 7. Constitution of the Corporation:- (1) The Corporation shall consists 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 per cent of the total number of Councillors in the case of Bruhat Bangalore Mahanagar 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.- (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 House 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. (2) XXXX (3) XXXX (4) XXXX (5) XXXX (6) XXXX 7. In view of the right of participation of a Members of the House of People, Members of the Council of the State and State Legislative Council who are registered as electors within the city at the meetings of the Corporation and their right to vote at the said meetings have been called in question, it would be necessary to examine as to whether Section 9 of the K.M.C. Act has any application at all inasmuch as by Act 35 of 1994, Section 9 of the K.M.C. Act was omitted and the amendment Act is deemed to have come into effect from 1.06.1994. 8. Part IXA of the Constitution containing Article 243P to 243Z, 243ZA to 243ZG came to be inserted by 74th Constitutional amendment in the year 1992 w.e.f. 01.06.1993. Article 243R provides for Composition of Municipalities, which reads as under: Article 243R. 8. Part IXA of the Constitution containing Article 243P to 243Z, 243ZA to 243ZG came to be inserted by 74th Constitutional amendment in the year 1992 w.e.f. 01.06.1993. Article 243R provides for Composition of Municipalities, which reads as under: Article 243R. Composition of Municipalities.- (1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide- (a) for the representation in a Municipality of (l) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) The Chairpersons of the Committees constituted under clause (5) of article 243S: Provided, that the persons referred to in paragraph (i) shall not nave the right to vote in the meetings of the Municipality; (b) the manner of election of the Chairperson of a Municipality. 9. Sub Article (1) of Article 243-R would clearly indicate that all the seats in a Municipality should be filled by persons chosen by direct election from the territorial constituencies in the Municipal area. Sub Article (2) of Article 243-R enables the legislature of a State by law to provide for representation in a Municipality of - persons having special knowledge or experience in Municipal administration; members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area. However, proviso to Article 243(2) (a) would indicate that person referred to in clause (i) of Article 243R (2) (a) shall not have the right to vote in the meetings of Municipality. 10. However, proviso to Article 243(2) (a) would indicate that person referred to in clause (i) of Article 243R (2) (a) shall not have the right to vote in the meetings of Municipality. 10. The right of a elected member namely member of House of the people and Member of the Legislative Assembly to represent in a Municipality fell for consideration in the case of Kuldeep Nayar V/s Union of India and others reported in AIR 2006 Supreme Court 3127 and it came to be held as under: 217. Similarly, under Article 243R (Composition of Municipalities), through sub-Article (2), the Legislature of a State has been vested with the power to, by law, provide for the representation in a municipality of "the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the municipal area" and "the members of the Council of States and the members of the Legislative Council of the State registered as the electors within the municipal area". 221. Secondly, the above provisions are part of the scheme of local self-government engrafted in the Constitution, the object sought to be achieved thereby being to provide a linkage between the local bodies and the legislature at the Stole and Union levels. The purpose sought to be achieved is to give to the Members of State Legislature and the Parliament access to the grass-root level, equipping them with knowledge about local problems, issues, opinions and aspirations, thereby strengthening democracy. 222. Then, the enabling provisions may not have uniform application. Their effect would depend on the provisions enacted or to be enacted by the respective State Legislatures for each State. The enabling provisions the import of which is reflected in phraseology extracted above, themselves make it abundantly clear that the claim of the members of the State or Union Legislature for representation in the Panchayat or municipality depends on various factors that may or may not exist vis-a-vis each such member. To elaborate, it can be said that if there can be a member of the Council of States registered, as an elector within a Panchayat area or municipal area there can also be a member of the Council of States not so registered as an elector within a Panchayat area or municipal area. To elaborate, it can be said that if there can be a member of the Council of States registered, as an elector within a Panchayat area or municipal area there can also be a member of the Council of States not so registered as an elector within a Panchayat area or municipal area. Moreover, the relevant clauses do not apply only to elected members of the Council of States. Thus, even a nominated member of the Council of States qualifies to be a representative in the Panchayat or a municipality if he fulfills the qualification prescribed. So, a conclusion in respect of the elected "representatives of the State" in the Council of States cannot be reached on such basis. 11. In conclusion, it was held Article 243-R provides for qualification of various categories of persons, which happen to include the members of the council of States, to be representatives in a Panchayat or a Municipality. It has been held that members of the council of States is one of the several source providing for representation between the local bodies and the legislature at the state and union level. 12. As such, recognising their necessity to participate in the electoral process, it has been held by the Hon'bie Apex Court in the case of Kuldip Nayar referred to supra as under: 224. Last, but not the least, the provisions that have been referred are Constitutional provisions. Even on the premise that in enacting them the factor of registration as elector within a particular Panchayat or Municipal area was considered important in relation to the members of the Council of States so as to give them the additional responsibility of representation in the local Panchayat or Municipality, it cannot be said that these provisions add the requirement of domicile to the qualifications for membership in the Council of States. There is no such express Constitutional provision prescribing such additional qualification. 13. In this background, when the provisions of the K.M.C. Act are examined, it would clearly indicate that by virtue of Article 2-13-R of the Constitution having been introduced w.e.f. 01.06.1993 correspondingly Section 9 of the K.M.C. Act came to be deleted and clause (b), (c), (d) of sub Section (1) of Section 7 came to be substituted by Act 35 of 1994 w.e.f. 01.06.1994. In other words, by virtue of the constitutional amendment being brought about the right of the members of House of People, Members of the State Legislative Assembly and Members of the State Legislative Council who are registered as electors within the City became entitled to participate and constitute electoral college of a Municipal Corporation. It is because of this reason, the members of the House of people and the Members of the State Legislative Assembly representing a part of whole of the City whose constituencies lie within the city have been recognised to represent a Municipal Corporation or Municipality and as such they are also permitted to participate in the election process. 14. The Hon'ble Apex Court in the case of Ramesh Mehta V/s Sanwal Chand Singhvi and others reported in (2004) 5 SCC 409 has examined as to what constitute the 'whole number of members' for removal of a chairman of the municipality by no confidence motion and in this background, Article 243R came to be examined both post-amendment and pre- amendment and it has been held that, the chairman who had to vacate his office on passing of a no confidence motion by requisite majority of members, who had the right to vote, included the co-opted members prior to 74th constitutional amendment and post constitutional amendment having brought about drastic change in the matter of composition of municipalities and guidelines with regard to constitution, composition, election and rights of the members of a municipality being governed by Article 243R had enabled -he legislature of a State to appoint any person as a member of the Municipal Board, who has special knowledge in the field of Municipal Administration and proviso appended to the said Article precludes the nominated person under sub clause (1) from having a right to vote in such municipalities and this proviso to Article 243R(2) of the Constitution would make a marked distinction between elected and nominated members and as such, it has been held after 1994 amendment, only the elected members and members of the legislative assembly will have a right to vote under Section 9 of the Rajastan Municipality Act, 1959 (as amended). It has been held by the Hon'bie Apex Court in the said judgment as under: 11. In the present case, on facts, we are concerned with post 1994 position. It has been held by the Hon'bie Apex Court in the said judgment as under: 11. In the present case, on facts, we are concerned with post 1994 position. Article 243R brought about a drastic change in the matter of composition of municipalities. It lays down guidelines with regard to the constitution, composition, election and rights of the members of a municipality. Under the said Act, members of a municipality are persons chosen by direct election by the residents of a municipal area (ward). Article 243R(2)(a)(i) allows the legislature of a State to appoint any person as a member of the board who has special knowledge in the field of municipal administration, however, the proviso appended to the said Article precludes persons nominated under sub-clause (i) from having a right to vote in the meetings of the municipality. The Constitution, therefore, makes a distinction between elected members and nominated members who play essentially an advisory role. Pursuant to the 74th Constitutional amendment of 1994, sections 9, 65 and 72 of the Act were amended. Prior to the amendment the co-opted members were at par with the elected members, however, after 1994 only elected members and members of the legislative assembly have a right to vote under section 9(1) of the Act. Under sub-section (2) of section 65, as amended, the Chairman has to be elected by "elected members of the board". This change is very important. Prior to 1994, the Chairman was to be elected, by the "members of the beard", which is the phrase used in the unamended section 65(2), as the co-opted members had a right to vote. However, in 1994, section 65(2) of the Act was amended and the expression "members of the board" in the old section is substituted by the expression "elected members of the board". In fact, the expression "whole number of members" earlier appearing in sections 65 and 72 of the Act has been deleted because in section 65(2) it is expressly provided that the Chairman shall be elected only by elected members of the board from amongst themselves. Therefore, the scheme of post 1994 Act is that the chairman/ vice-chairman shall be elected by the elected members of the boards and their office shall stand vacated on passing of no confidence motion by the elected members of the board. Therefore, the scheme of post 1994 Act is that the chairman/ vice-chairman shall be elected by the elected members of the boards and their office shall stand vacated on passing of no confidence motion by the elected members of the board. The position which, therefore, emerges is that both before and after 1994, the no-confidence motion had to be voted upon by members who were entitled to vote. As stated above, section 3 of the Act begins with the words "unless the context otherwise requires". Section 3(36) defines the expression "whole number" "total number" to mean total number of members holding the office at the given time. The said expression "whole number of members finds place in rule 3(5), (8) and (9). Hence, we have to read rules 3(5), (8) and (9) in the context of the provisions of the said Act. As stated above, the basic scheme of the Act prior to 1994 and post 1994 has remained unchanged. In both cases, the legislative intent has been that the office of the chairman/vice-chairman shall stand vacated on passing of no- confidence motion by the members of the board who are entitled to vote. Hence, in our view, the expression "whole number" or "total number' connotes the "total number of elected members. 13. To sum up, under pre 1994 and post 1994 provisions, the legislature intended that chairman/vice chairman shall be removed on passing of no-confidence motion by requisite majority of members having right to vote. 15. Proviso to clause (d) of sub Section (1) of Section 7 of the KMC Act would further clarify as to who shall not have right to vote namely those persons referred to in clause (b) shall not have right to vote at the meetings of the Corporation. In other words, 10% of the total number of councillors in the case of Bruhath Bangalore Mahanagara Palike and not more than 5 persons in the case of other city corporations nominated by the Government from amongst residents of the city are not having right to vote at the meetings of the Corporation. However, there is no bar in sofar as other persons are concerned. In other words, such of those reasons referred to under Section 7 (1) (c) and (d) of the K.M.C. Act would have right to vote in the meetings of Corporation. However, there is no bar in sofar as other persons are concerned. In other words, such of those reasons referred to under Section 7 (1) (c) and (d) of the K.M.C. Act would have right to vote in the meetings of Corporation. The exclusion clause as per proviso being specific and clear would apply only to such class or category of persons as referred to in clause (b) of sub Section (1) of Section 7 namely who are specifically excluded under the statute itself. What is not discernible from the statute, the Courts would not engraft such words and read into the words of the legislature, so as to bring within the sweep of exclusion clause that other category of class of persons who are otherwise entitled to participate and have a right to vote at the meetings of the Corporation. 16. In that view of the matter, I am not inclined to accept the contentions raised by Sri.Ravikumar Gokakakar and same are liable to be rejected as being without merit and accordingly they are hereby rejected. Hence, petition is liable to be dismissed and accordingly it stands dismissed. Costs made easy. Ordered accordingly. In view of writ petition having been dismissed, I.A. No. 1/2014 filed for early hearing does not survive for consideration and it stands rejected.