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Karnataka High Court
H.SHIVAPPA - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 04-15-05
W.P. : 39675 of 2004
Cases Referred: 2004(7) Kar. L.J. 449: ILR 2004 Kar 3966; Writ Petition Nos. 3914 and 4101 of 2004; 1996 (8) JT (SC) 733; AIR 2000 SC 2979: (2000)8 SCC 216: 2000 (6) Supreme 76,; Writ Petition Nos. 30341 and 30342 of 2004,; ILR 1997 Kar 2518 (DB),; 1991(2) Kar. L.J. 172 (FB): ILR 1991 Kar. 1057 (FB): AIR 1991 Kant. 317 (FB),; AIR 1985 SC 1233: (1985) 4 SCC 689,; AIR 1988 SC 61: (1988) 1 SCC 277,; 1981 (1) Kar. L.J 149 (DB),; (1991) 4 SCC 139,.
Distinguished:connected with Writ Petition Nos. 4011 and 4012 of 2004, Dated: 23-2-2005; (1996) 6 SCC 303:
Locus Standi
KARNATAKA MUNICIPALITIES ACT, 1964 - Section 23 - Locus Standi -Election to offices of President and Vice President of Municipalities - Reservations made - Means, a person not falling under the reserved categories cannot contest election - Now, can such a person maintain an Election Petition? If not, can he maintain a Writ Petition questioning the legality of notification which provided for reservation?
Constitution of India - Maintainability of Writ Petition - Article 226 - Maintainability of Writ Petition - Elections to office of President and Vice President of Municipalities - Reservation to - Notification regarding challenge to - Does the constitutional bar operate to entertain Writ Petition. [D. V. Shylendra Kumar, J]: It is not possible to include the elections to the posts of Chairpersons to a municipality within the meaning of the word municipality , as the provision is one which curtails the jurisdiction of the Courts, imposes fetters on the jurisdiction, until and unless the bar is express and unambiguous.
Cases Referred: 2004(7) Kar. L.J. 449: ILR 2004 Kar 3966; 1996 (8) JT (SC) 733; AIR 2000 SC 2979: (2000)8 SCC 216: 2000 (6) Supreme 76,; Writ Petition Nos. 30341 and 30342 of 2004,; ILR 1997 Kar 2518 (DB),; 1991(2) Kar. L.J. 172 (FB): ILR 1991 Kar. 1057 (FB): AIR 1991 Kant. 317 (FB),; AIR 1985 SC 1233: (1985) 4 SCC 689,; AIR 1988 SC 61: (1988) 1 SCC 277,; 1981 (1) Kar. L.J 149 (DB),; (1991) 4 SCC 139,.
Distinguished:Writ Petition Nos. 3914 and 4101 of 2004 connected with Writ Petition Nos. 4011 and 4012 of 2004, Dated: 23-2-2005; (1996) 6 SCC 303.
Constitution of India - Maintainability of Writ Petition - Article 226 - Maintainability of Writ Petition - Elections to office of President and Vice President of Municipalities - Reservation to - Notification regarding challenge to - Does the constitutional bar operate to entertain Writ Petition. [D. V. Shylendra Kumar, J]: It is not possible to include the elections to the posts of Chairpersons to a municipality within the meaning of the word municipality , as the provision is one which curtails the jurisdiction of the Courts, imposes fetters on the jurisdiction, until and unless the bar is express and unambiguous.
Cases Referred: 2004(7) Kar. L.J. 449: ILR 2004 Kar 3966; 1996 (8) JT (SC) 733; AIR 2000 SC 2979: (2000)8 SCC 216: 2000 (6) Supreme 76,; Writ Petition Nos. 30341 and 30342 of 2004,; ILR 1997 Kar 2518 (DB),; 1991(2) Kar. L.J. 172 (FB): ILR 1991 Kar. 1057 (FB): AIR 1991 Kant. 317 (FB),; AIR 1985 SC 1233: (1985) 4 SCC 689,; AIR 1988 SC 61: (1988) 1 SCC 277,; 1981 (1) Kar. L.J 149 (DB),; (1991) 4 SCC 139,.
Distinguished:Writ Petition Nos. 3914 and 4101 of 2004 connected with Writ Petition Nos. 4011 and 4012 of 2004, Dated: 23-2-2005; (1996) 6 SCC 303
Maintainability of Writ Petition
CONSTITUTION OF INDIA - Article 226 - Maintainability of Writ Petition - Elections to office of President and Vice President of Municipalities - Reservation to - Notification regarding challenge to - Does the constitutional bar operate to entertain Writ Petition.
[D. V. Shylendra Kumar, J]: It is not possible to include the elections to the posts of Chairpersons to a municipality within the meaning of the word municipality , as the provision is one which curtails the jurisdiction of the Courts, imposes fetters on the jurisdiction, until and unless the bar is express and unambiguous.
Cases Referred: 2004(7) Kar. L.J. 449: ILR 2004 Kar 3966; 1996 (8) JT (SC) 733; AIR 2000 SC 2979: (2000)8 SCC 216: 2000 (6) Supreme 76,; Writ Petition Nos. 30341 and 30342 of 2004,; ILR 1997 Kar 2518 (DB),; 1991(2) Kar. L.J. 172 (FB): ILR 1991 Kar. 1057 (FB): AIR 1991 Kant. 317 (FB),; AIR 1985 SC 1233: (1985) 4 SCC 689,; AIR 1988 SC 61: (1988) 1 SCC 277,; 1981 (1) Kar. L.J 149 (DB),; (1991) 4 SCC 139,.
Distinguished:Writ Petition Nos. 3914 and 4101 of 2004 connected with Writ Petition Nos. 4011 and 4012 of 2004, Dated: 23-2-2005; (1996) 6 SCC 303.
Bar under
Constitution of India - Article 243-ZG(b) -Bar under -Applicability - Elections to office of President and Vice President of Municipalities - Reservation to - Notification regarding -Challenge to - Does the constitutional bar operate to entertain Writ Petition.
Cases Referred: 2004(7) Kar. L.J. 449: ILR 2004 Kar 3966; Writ Petition Nos. 3914 and 4101 of 2004; 1996 (8) JT (SC) 733; AIR 2000 SC 2979: (2000)8 SCC 216: 2000 (6) Supreme 76,; Writ Petition Nos. 30341 and 30342 of 2004,; ILR 1997 Kar 2518 (DB),; 1991(2) Kar. L.J. 172 (FB): ILR 1991 Kar. 1057 (FB): AIR 1991 Kant. 317 (FB),; AIR 1985 SC 1233: (1985) 4 SCC 689,; AIR 1988 SC 61: (1988) 1 SCC 277,; 1981 (1) Kar. L.J 149 (DB),; (1991) 4 SCC 139.
Distinguished:connected with Writ Petition Nos. 4011 and 4012 of 2004, Dated: 23-2-2005; (1996) 6 SCC 303.
( 1 ) IN all these petitions, wherein mainly persons elected as Councilors to various City Municipal Councils in the State figure as petitioners, the question that is involved is as to whether the Government Notification no. UDD 51 MLR 2004 (P-1), dated 1-9-2004 issued by the first respondent-State for the purposes of Section 42 (2-A) of the Karnataka municipalities Act, 1964 (for short, 'the Act') providing for reservation of the posts of 'president' and 'vice-President' in various City Municipal councils; is in conformity with the very provisions, namely, Section 42 (2-A) of the Act and if not as to whether any intervention is called for.
( 2 ) WHILE it is the assertion of some of the petitioners that the reservations as provided in terms of Notification dated 1-9-2004 bristles with various anomalies, discrepancies, virtually flouting the very provisions; that while in respect of some of the Councils, the reservation had been provided in excess, in the sense that, the reservation has been provided repetitively. Complaint of some of the other petitioners not falling in this category is that there is a lacking in providing such reservation; that by not providing reservation in favour of a category statutorily provided for, reservation is being deprived in violation of the enabling provision; that permitting the State Government to go ahead with the conduct of the election to the post of 'president' and 'vice-President' in such Municipal Councils will only allow the respondents to perpetuate illegality and to the detriment of the petitioners that it calls for correction at the earliest and at any rate before the elections can be held.
( 3 ) WHILE under the enabling provisions of Section 42 (2-A) of the Act, enacted by way of amendment through Act No. 36 of 1994, for the purpose of giving effect to the provisions of Article 243-T of the constitution of India and that the reservation as required is sought to be ensured and for a fair distribution amongst the various Councils by rotating the same, the allegation is that the notification virtually defeats not only the constitutional mandate under Article 243-T, but also the implementative statutory provision of Section 42 (2-A) of the Act by providing reservation in a manner not in consonance with the statutory provisions.
( 4 ) RESPONDENTS have been put on notice and the respondents have also filed their statement of objections.
( 5 ) THE matter was heard at length for the past more than six months. Respondents, in fact, initially took time with the assurance that the notification was in consonance with the statutory requirements that no violation had been committed; that the overall extent of reservation as provided for under Section 42 (2-A) of the Act has been adhered to and therefore no intervention was required.
( 6 ) A series of orders came to be passed from time to time in the light of these developments and as a result of the hearing on each date of the hearing and the orders are as under:"8-11-2004: la No. II of 2004 filed in W. P. No. 35676 of 2004 and I. A. Nos. III of 2004 and V of 2004 filed in W. P. No. 35335 of 2004 are for vacating an interim order of stay that has been granted in W. P. No. 35676 of 2004 staying the operation of a Government notification dated 1-9-2004 whereunder the Government has indicated the reservations that have been provided for elections to the post of 'president' and 'vice-President' in as many as 34 City municipal Councils in the State. The applicants who have moved for vacating the interim order of stay are persons who are Municipal Councillors who aspire to contest the election for the post of 'president' and 'vice-President' ; that the stay of the general Notification providing for reservation has stalled the election process; that in respect of many Municipal councils, calendar of events had already been notified even before the stay order had been granted; that in respect of some City municipal Councils, elect
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