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2021 DIGILAW 970 (KAR)

ABDULLA KHAN S/O. KHASIM KHAN v. STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT M. S. BUILDING BENGALURU

2021-11-29

M.NAGAPRASANNA

body2021
ORDER : The petitioners are before this Court calling in question the final Notification dated 25-11-2021 issued by the 1st respondent depicting reservation for Sira City Municipal Council (‘CMC’ for short). 2. Heard Sri Jayakumar S.Patil, learned Senior Counsel for Sri Mahammed Tahir, learned counsel for the petitioners, Sri Dhyan Chinnappa, Additional Advocate General along with Smt. Prathima Honnapura, Additional Government Advocate for respondents 1 and 2 and Sri K.N. Phanidra, learned Senior Counsel for Smt. Vaishali Hegde, learned counsel for respondent No.4. 3. Shorn of unnecessary details, facts in brief germane for consideration of the lis are as follows: The petitioners claim to be residents of Sira and prospective candidates for the ensuing elections to the CMC. The petitioners belong to Ward No.19 of the CMC. Therefore, the petition concerns Ward No.19 alone of the CMC. The issue in the petition is with regard to policy of reservation and its rotation for the CMC. The first general election to the City Municipal Council was held in the year 2007. The term of office of Members in terms of the Karnataka Municipalities Act, 1964 (‘the 1964 Act’ for short) is five years. For the elections that were held in the year 2007, a notification was issued by the State Government on 12-10-2007 depicting reservation for Ward No.19 to be reserved for General (Woman), after which elections were notified in the year 2013. It is not in dispute that the policy of reservation and elections notified in the year 2013 became subject matter of several writ petitions before this Court and ultimately decided by the Apex Court. The Apex Court directed that within one week from the date of decision of the Apex Court if the State Government would not notify any policy of reservation for conduct of elections of the year 2013, the earlier reservation notification dated 12-10-2007 be applied and elections be conducted. Therefore, the reservation notification dated 12.10.2007 stood repeated for the elections in the year 2013 as well. It is in that light Ward No.19 of the CMC was depicted to be reserved for General (Woman) in the 2013 as was done in the year 2007. 4. After 2013, elections were to be held in the year 2018. The State Government issued a notification on 30-07-2018 depicting reservation in Ward No.19 to General (Woman) again. It is in that light Ward No.19 of the CMC was depicted to be reserved for General (Woman) in the 2013 as was done in the year 2007. 4. After 2013, elections were to be held in the year 2018. The State Government issued a notification on 30-07-2018 depicting reservation in Ward No.19 to General (Woman) again. This along with other cases was called in question before this Court in Writ Petition No.44499 of 2018 and connected cases. This Court by an order dated 14-01-2019 allowed writ petitions and quashed the notification issued for such reservation in various CMCs. In so far as it pertained to the subject CMC i.e., Sira City Municipal Council the observation of the Court is as follows: “In the said writ petitions, the petitioners have assailed the notification and submit that there has been repetition of reservation in many of the wards of the Sira City Municipal Council and as regards Ward No.19 is concerned, there has been a repetition of reservation for the category of ‘General (Woman)’. It is submitted that the said ward has been reserved for the ‘General (Woman)’ category for the terms in 2007 and 2013 as well and hence there is repetition. It is also stated that there has been no rotation and sequence as provided for in the guideline has not been adhered to.” and the operative portion and direction with regard to the CMC is also part of the order and reads as follows: “Sira City Municipal Council: As regards Writ Petitions at Sl.Nos.21, 22, 23, 24 and 25, relating to Sira City Municipal Council, notification dated July 30, 2018 is quashed in its entirety in the light of repetition as mentioned in column No.4 of the above table, for being in violation of principle No.1. Further, given that there has been no change in the number of Wards consequent to delimitation per principle No.2, and for no certification as required by Deputy Commissioner has been placed showing substantive change in composition of individual Wards per principle No.3, hence no case for exemption is made out.” Several directions were issued by this Court to the State to even relook into the guidelines with regard to reservation and rotation. This was called in question by the State before the Division Bench in Writ Appeal No.3776 of 2019 and connected cases which were subsequently withdrawn. This was called in question by the State before the Division Bench in Writ Appeal No.3776 of 2019 and connected cases which were subsequently withdrawn. After withdrawal of the aforesaid writ appeals, the State Government issued another notification depicting reservation to Ward No.19 of the CMC on 21-01-2021 reserving the seat in Ward No.19 in favour of BCA. This was a draft notification and after objections were called, final notification was issued on 16-03-2021 retaining the reservation in favour of BCA. This was called in question by several residents of the CMC in Writ Petition Nos.5886 of 2021 and connected cases. This Court by its order dated 25-03-2021 quashed the final notification dated 16-03-2021 and directed that the respondent/State would consider the objections filed by the petitioners and finalise reservation for the elections to the CMC at the earliest. 5. Pursuant to this order, a draft notification was issued on 23-08-2021 depicting reservation to be made for BCA (Woman). This was again called in question by the very same petitioners who had approached this Court earlier in Wirt Petition No.16999 of 2021. This Court by its order dated 20-09-2021 disposed of the writ petition declining to interfere with the draft notification but directed the State to consider the objections. On consideration of the objections a final notification is issued on 25-11-2021 changing the reservation from BCA to BCA (Woman). It is this notification that is called in question in the subject petition. 6. The learned senior counsel representing the petitioners would vehemently argue and contend that there is repetition of reservation which is contrary to the Guidelines notified by the State Government which depict reservation and would also submit that it is based on the interpretation of the said guidelines, this Court in the earlier writ petition held that there shall not be repetition of reservation with particular reference to Ward No.19 of the CMC. The learned senior counsel would emphasise that there is repetition of reservation as in the year 2013 Ward No.19 was reserved to General (Woman) category and is now reserved again to BCA (Woman). It is his submission that reservation to woman category cannot be repeated. 7. On the other hand, the learned Additional Advocate General Mr. The learned senior counsel would emphasise that there is repetition of reservation as in the year 2013 Ward No.19 was reserved to General (Woman) category and is now reserved again to BCA (Woman). It is his submission that reservation to woman category cannot be repeated. 7. On the other hand, the learned Additional Advocate General Mr. Dhyan Chinnappa would submit that there is no repetition of reservation as earlier it was for General (Woman) category and now it is for BCA (Woman) category and the two categories are entirely different and the petitioners cannot seek that Ward No.19 should be reserved as per their wish, contrary to the policy. 8. The learned senior counsel Sri K.N. Phanindra representing the State Election Commission would submit that calendar of events are notified in the morning of 29-11-2021 and the Deputy Commissioner is yet to notify the same in pursuance to the calendar of events issued by the Election Commission and would submit that the Division Bench of this Court on 17-11-2021 has directed that elections to all local bodies should be concluded before 30-12-2021. It is in that light there is urgency to conclude elections which have not been held for the last three years. 9. I have given my anxious consideration to the submissions made by the respective learned senior counsel and the learned Additional Advocate General and perused the material on record. 10. The afore-narrated facts which are not in dispute need not be repeated. The guidelines notified by the State for reservation in the CMCs and the one subsisting as on date is what is notified on 30-08-2012. The guidelines are notified in terms of the power conferred and in furtherance of the provisions of the 1964 Act. Clause 10 of the Guidelines read as follows: xxxxxxxxxxxx In terms of Clause 10 of the Guidelines while distributing seats concerned the reservation notified in the earlier elections shall not be repeated in the subsequent elections 'as far as practicable'. The language deployed in the Clause is when a seat is reserved for ‘A’ category and ‘B’ category or woman in the previous election it shall not be repeated in future elections as far as possible. The notification of reservation began in the year 2007. Ward No.19 in 2007 was reserved for General (Woman). The language deployed in the Clause is when a seat is reserved for ‘A’ category and ‘B’ category or woman in the previous election it shall not be repeated in future elections as far as possible. The notification of reservation began in the year 2007. Ward No.19 in 2007 was reserved for General (Woman). This was repeated on account of the judgment of the Apex court in 2013 and, therefore, it was reserved for General (Woman). Between 2013 and 25-11-2021 there were four notifications issued both draft and final which were all quashed by this Court. Therefore, the period that is to be taken into consideration in the case at hand is 2013 and 2021 and the issue to be decided is between 2013 and 2021 and nothing in between. 11. In the elections during 2013 Ward No.19 was reserved for General (Woman) and in 2021 by the impugned notification the same ward is reserved for BCA (Woman). The contention of the learned senior counsel appearing for the petitioner is that in the year 2013 it was reserved for woman category and in 2021 it is again reserved for woman category; it amounts to repetition of reservation. This contention is unacceptable, as the submission equates woman to a category. Woman is not a category, but a gender. Category is either ‘General’ or ‘BCA’. In the earlier elections what was reserved qua Ward No.19 was General (Woman) and now it is BCA (Woman). If woman is not a category, the categories that are reserved then and now are ‘General’ and ‘BCA (Woman)’ which are altogether different. Therefore, in my considered view there is no repetition of reservation or violence made to the Guidelines. In the earlier elections what was reserved qua Ward No.19 was General (Woman) and now it is BCA (Woman). If woman is not a category, the categories that are reserved then and now are ‘General’ and ‘BCA (Woman)’ which are altogether different. Therefore, in my considered view there is no repetition of reservation or violence made to the Guidelines. The reference made to other wards in the petition to buttress the submission that there is violation of the policy and the sequence that is depicted in the Guidelines is not the subject of the present petition as the present petition concerns concerning Ward No.19 and the sequence of reservation in Ward No.19 is as follows: No of Ward Ward wise (Reservation) Final Notification Ward wise (Reservation) Final Notification Ward wise (Reservation) Final Notification Draft Notification 21/01 /2021 Final Notification 16/03/ 2021 Draft Notification 23/08/ 2021 Draft Notification 25/11/ 2021 Ward wise Population As per 2011 Census 2007 2013 2018 2021 2021 2021 2021 19 General (W) General (W) General (W) BC-A BC(A) BC(A) BC(A)(W) 1541 On a perusal of the reservation and on afore-narrated analysis what unmistakably emerges is that there is no repetition of reservation as contended. 12. The submission of the learned senior counsel appearing for the respondent/Election Commission also merits consideration as since 2018 when the term of the elected body was over, the Administrator is holding position and elections have not been held for the last three years and it is in that light the Division Bench directed that elections to Local Bodies shall be completed by 30-12-2021 in Writ Petition No.14925 of 2020. The elections being the bulwark of democracy cannot be stifled or scuttled by the processes of this nature and interpretation that is contrary to law. 13. For the aforesaid reasons, I do not find any merit in the writ petition and is accordingly dismissed. In view of dismissal of the petition, I.A.No.1/2021 does not survive for consideration. Accordingly, stands disposed.