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2016 DIGILAW 653 (KAR)

B. Srinivas Prasad v. State of Karnataka

2016-08-29

L.NARAYANA SWAMY

body2016
ORDER : L. Narayana Swamy, J. The prayer made by the petitioner in these writ petitions is for quashing the notification dated 4-3-2016 insofar as Bommasandra Town Municipal Council is concerned reserving the offices of the President to SC Woman as per the notification issued by the respondent at Annexure-C and to direct the respondent to maintain the first notification dated 24-2-2016 by allotment of reservation for SC to the Bommasandra Town Municipal Council. 2. The learned Counsel for the petitioners submitted that they are elected as Councillors to the Bommasandra Town Municipal Council and they are eager to contest to the ensuing Elections to the President of Bommasandra Town Municipal Council. At the first instance by notification dated 24-2-2016, the reservation of president to Bommasandra TMC was reserved for SC and without any reason on 4-3-2016, the same was changed to SC Woman. The said notification is contrary to law and contrary to guidelines of a sequence of reservation for the first time constituted Municipalities and the said notification is bad in law. 3. He has further submitted that, even the reasons have not been assigned by the respondent while changing the reservation basing on the population. It was modified to suit convenience of politically powerful persons in the Government and he further submitted, when such being the case as per the guidelines published by the Government under Rules 13 and 13-A of the Karnataka Municipalities (President and Vice-President) Election (Amendment) Rules, 2015, guidelines was published on 5-2-2016 and the said guidelines contemplates the sequence of reservation. According to the population hierarchy Bommasandra which stands in a 10th position on the basis of the population wherein the population of Bommasandra is 10.36% and the population of Athibele which is 13.47% instead of allotting the seat as per the guidelines to the SC, the reservation was changed from SC to SC Woman. 4. We has further submitted that the said reservation made as per the list dated 24-2-2016 in Notification No. ODD 25 MLR 2016(2), Bangalore, in which Bommasandra in item no. 21 the reservation made for SC, which could not have been altered. 5. 4. We has further submitted that the said reservation made as per the list dated 24-2-2016 in Notification No. ODD 25 MLR 2016(2), Bangalore, in which Bommasandra in item no. 21 the reservation made for SC, which could not have been altered. 5. The learned Counsel for the respondent has submitted that the petitioners have prayed to quash the notification dated 4-3-2016 in No. UDD 25 MLR 2016(2), Bangalore insofar as the reservation of Office of President of the Attibele Town Municipal Council for S.C. marked at Annexure-C issued by the respondent and to direct them to maintain the reservation for the Attibele Town Municipal Council is concerned in respect of President of the Municipality for SC Woman as per notification dated 24-2-2016 in the said notification. 6. It is further submitted that there is no error in the Government allotting Office of the President and Vice-President to various categories for the 8 Towns in respect of certain Town Municipal Councils under Rules 13 and 13-A of the Karnataka Municipalities (President and Vice-President) Election (Amendment) Rules, 2015 and guidelines issued vide Order No. UDD 19 MLR 2016, dated 5-2-2016. 7. It is further submitted that as per clauses (4) and (5) of Article 243-T of the Constitution of India and sub-section (2) of Section 42 of Karnataka Municipalities Act, 1964 provide for reservation of office of the Presidents and Vice-Presidents of City Municipal Council, Town Municipal Councils, Town Panchayath to SCs, STs, BCs and Woman on rotation basis. 8. The learned Counsel for the respondent referred W.P. Nos. 15881 to 15883 of 2016, dated 13-4-2016 passed by this Court and in Ravi and Others v. State of Karnataka and Others W.P. No. 102383 of 2016, dated 16.3.2016. passed by the High Court of Karnataka, Dharwad Bench, wherein the notifications issued subsequently came to be quashed upholding the reservation as per the first notification. The case on hand is also similar to that of the connected matters disposed of by this Court. He further submitted that as per the notification dated 24-2-2016, the writ petitions in the connected matters, it is in respect of Attibele and it is referred as SC Woman, now it is modified as SC for which there is no reason to change the reservation from SC to SC woman for Bommasandra TMC. He further submitted that as per the notification dated 24-2-2016, the writ petitions in the connected matters, it is in respect of Attibele and it is referred as SC Woman, now it is modified as SC for which there is no reason to change the reservation from SC to SC woman for Bommasandra TMC. Hence, the same is bad in law and liable to be quashed being contrary to Article 14 of the Constitution of India and violative of principles of natural justice. 9. He further referred the judgment passed by this Court in W.A. No. 3065 of 2010. W.A. Nos. 3096 and 3097 of 2010 in the connected judgments dated 28-9-2010 and referred page 8, sub-para (4) which reads thus: "(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of Court." 10. Another judgment passed by this Court in W.P. No. 44458 of 2012 and other connected matters if is referred pages 44 and 49 of paras 16 and 21 which read thus: "16. The guidelines laid down will clearly indicate that though there may not be a bar in law, yet the Court must be very circumspect while considering election matters and judicial intervention should be made only to smoothen the progress of election proceedings and it should not interrupt, obstruct or delay the progress of election proceedings. 21. Therefore, the instant reservations which have been made by the Deputy Commissioners in the impugned notifications by relying on the guidelines which has been issued by the State Election Commission in my view cannot be scrutinised in the writ proceedings in the nature of a fact finding exercise so as to examine whether the rotation has been done with mathematical precision in the manner where there is no repetition at all in any of the Grama Panchayats. Furthermore, there is no scope for a roving enquiry to be made in a writ proceeding, more particularly in a circumstance where the election process is at a stage where the Adhyaksha and Upadhyakshas are being elected for the 10th time after the commencement of the process in the year 1993. Therefore, when such rotations are being effected, there would be repetitions to certain of the posts keeping in view the number of posts reserved, in relation to the number of Grama Panchayats among which it is to be rotated. Hence, any interference at this stage by this Court would prevent the elections being held as per schedule and further, if interference is made, it willed to challenge by the members of the other Grama Panchayath who may not be satisfied with the change made as stated above and there can be no possibility of concluding the elections in the near future. Therefore, considering these aspects of the matter, I am of the opinion that the present cases do not call for exercise of discretion to entertain the writ petitions, more particularly when the petitioners in any event if aggrieved, can avail their alternate remedy after the elections. Moreso in the present circumstance, it such exercise is under taken by this Court, when the earlier period of Adhyaksha and Upadhyaksha has come to an end, any order to be passed by this Court to modify the notifications or redo the process would only delay the electoral process and such interference has been frowned upon by the Hon'ble Supreme Court." 11. He has also referred Article 243-ZG of Constitution of India refer as: "243-ZG. Bar to interference by Courts in electoral matters.-Notwithstanding anything in this Constitution.- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-ZA shall not be called in question in any Court; (b) no election to any municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State." 12. Learned Counsel for respondent 2 submitted that, in the earlier judgment of this Court in W.P. Nos. Learned Counsel for respondent 2 submitted that, in the earlier judgment of this Court in W.P. Nos. 15881 to 15883 of 2016, dated 13-4-2016, it is held that the elections conducted as per the guidelines of 5-2-2016, when the modified order was passed it is on the basis of the said guidelines only. Hence, he prays to dismiss the petitions. 13. Heard the learned Counsel for both the parties and perused entire writ papers. 14. The reservation list published on 24-2-2016 was subsequently modified and changed from SC Woman to SC so far as Attibele Municipal Council which is contrary to the guidelines issued by the Government as per the sequence of allotment of seats for the first time to the Municipalities constituted and accordingly the first notification was in accordance with the guidelines. Insofar as the population of Athibele and Bommasandra for the reasons that the present roster now under challenge is shifted to Bommasandra to deprive the Scheduled Caste candidate at Bommasandra. Bommasandra and Athibele Constituencies were carved out of Anekal Taluk. Athibele population of Schedule Caste is 13.47% of the total population and the Taluk stands at 9th position in the hierarchy. Bommasandra wherein the population of the S.C. is 10.36% in the Anekal Taluk. That being so, as per 2011 Census automatically as per the guidelines the SC reservation for Woman has to go to Athibele first basing on the population and next it goes to Bommasandra where the population is less than Athibele. 15. The allocation of seats have to be made as per Section 42(2-A) of the Karnataka Municipalities Act and also in terms of Rule 13 of Karnataka Municipalities (President and Vice-President) Election (Amendment) Rules, 2015 and also the guidelines dated 5-2-2016. As per the guidelines issued by the State Government, rotation in respect of other categories shall ensure that there is no repetition of reservation of seat with reference to the reservation in the previous seven turns except General and General Woman Category. 16. By the order dated 13-4-2016 in W.P. Nos. 15881 to 15883 of 2016 this Court quashed the Government order dated 24-2-2016 and the similar orders passed by the Government is challenged before this Court. 16. By the order dated 13-4-2016 in W.P. Nos. 15881 to 15883 of 2016 this Court quashed the Government order dated 24-2-2016 and the similar orders passed by the Government is challenged before this Court. By the order dated 2-6-2016 in W.P. No. 202075 of 2016, the Kalaburagi Bench, High Court of Karnataka has also quashed the notification dated 4-3-2016 published in the Special Karnataka Gazette and directed to hold the elections as per the notification dated 24-2-2016. Under these circumstances, the modification order is to be quashed and direction is to be issued to hold the elections in accordance with the first notification dated 24-2-2016. Ordered accordingly.