Back
Karnataka High Court
Judges : H.L.Dattu,H.N.Nagamohan Das
H.C.YATHEESH KUMAR - Appellant
Versus
KARNATAKA ELECTION COMMISSION - Respondent
Writ Petition 14625 Of 2005
Decided On : 06/30/2005
Advocates Appeared :
A.Ananda Shetty, A.G.Shivanna, A.N.Hegde, A.NAGARAJAPPA, A.S.MAHADEVASWAMY, A.SAIPRAKASH, A.V.GANGADHARAPPA, ANANT MANDGI, ASHOK HARANAHALLI, ASHOK S.MENSINKAI, ASHOK HARANAHALLI, ASHOK S.MENSINKAI, B.B.Ballari, B.K.Manjunath, B.M.SIDDAPPA, B.S.KAMTE, B.T.PARTHASARATHY, B.VC.SANJEEV, B.VISWESWARAIAH, C.G.Gopalaswamy, DESHRAJ, DIVAKAR MADDUR, G.BALAKRISHNA SHASTRY, G.PAPI REDDY, G.S.BALAGANGADHAR, H.C.SHIVARAM, H.K.KENCHEGOWDA, H.KANTHA RAJA, HANUMANTHAREDDY SHANKAR, HARISH GANAPATHY, J.M.Anil Kumar, J.N.ANIL KUMAR, J.PRASHANT, Jagadeesh Patil, JAYKUMAR S.PATIL ASSOCIATES, K.G.Shanthappa, K.Govindaraj, K.H.SOMASEKHAR, K.HANUMANTHARAYAPPA, K.N.PHANINDRA, K.PRASAD HEGDE, K.SHASHI KIRAN SHETTY, LAXMINARAYAN, M. RAJASHEKAR, M.ASHOK KUMAR, M.R.PATIL, M.RAVIPRAKASH, M.SHIVAPPA, M.SHIVAPRAKASH, M.Sivappa, M.V.HIREMATH, M.V.VEDACHALA, MAHADEVASWAMY, MAHANTESH S.HOSMATH, MAHESH WODEYAR R, MUNIYAPPA, OMKARESH, P.Changalaraya Reddy, P.Mahesh, P.Nehru, P.S.Manjunath, PRABHULING K.NAVADGI, PUTTARAMAIAH, R.C.PATIL, R.NAGENDRA NAIK, R.V.SREENIVASA REDDY ASSOCIATES, RAJASHEKAR GUNJATHI, RAVI S.HEGDE, RAVISHANKAR, RAVIVARMA KUMAR, S.B.SHAHAPUR, S.GANGIREDDY, S.L.KANTAR, S.N.ASHWATHANARAYANA, S.P.SHANKAR, S.R.HEGDE HUDLAMANE, S.R.HEGDE HUDLAMANE, S.S.Guttal, S.V.SHASTRI, Satish R.Girji, SHANTESH GUREDDI, SUBASH B.ADI, SUMITHRA G.M., T.NARAYANASWAMY, T.S.MAHANTESH, THIMMANNA, UDAY KUMAR SINGH, UJWALA A.MANDGI, V.PRAKASH, V.R.SARATHY, Veeresh B.Patil
May - Interpretation of - Should be understood in the context - Discretion conferred on an authority coupled with an obligation - Word may which denoted discretion should be construed to mean a command.
[H. L. Dattu and H. N. Nagamohan Das, JJ]: Settled Principle :The word may is capable of meaning must or shall in the light of the context and where a discretion is conferred upon a public authority coupled with an obligation the word may which denotes discretion should be construed to mean a command (AIR 1977 SC 1516).
Cases Referred: AIR 1977 SC 740; AIR 1977 SC 1516; AIR 1978 SC 851; AIR 1981 SC 136; AIR 1988 SC 876; 1955 (5) SCC 346; AIR 1995 SC 1512; 1998 (1) SCC 285; ILR 2001 Kar. 5354; ILR 2002 Kar 35; 2002 (58) SCC 294; AIR 1955 SC 233; AIR 1960 SC 440; AIR 1967 SC 1189; AIR 1980 SC 882; AIR 1981 SC 463; AIR 1989 SC 1160; ILR 1997 Kar 2078; ILR 2000 Kar 2941; 2000 (8) SCC 216; 2002(2) SCC 7; (2000) 8 SCC 216; ILR 2000 Kar 2941.
Followed: (2000) 8 SCC 216; ILR 2001 Kar 5354; AIR 1988 SC 876; AIR 1977 SC 1516.
Applied: (1983) 4 SCC 353.
Distinguished: ILR 2000 Kar 2941.
Allotment of reserved seats
KARNATAKA PANCHAYAT RAJ ACT, 1993 -
Rule 3 (3) & (4) - Allotment of reserved seats - Guidelines as to what are the factors to be considered for making allotment - Rule vests arbitrary power in Deputy Commissioner and Government - Allotment made to every taluk in the district based on population - Contrary to Article 243D of the Constitution and Section 162 of the Karnataka Panchayat Raj Act.
[H. L. Dattu and H. N. Nagamohan Das, JJ]: In the absence of specific guidelines in the Rules as to what are the factors that will be taken into consideration leads to the vesting of arbitrary power in the hands of Deputy Commissioner and the Government in the matter of allotting seats in Taluk Panchayats and Zilla Panchayats for reserved category of Backward Classes and women. A voter in a Constituency is entitled to know as to how and in what manner and by taking what factors into consideration the seats reserved for backward classes and the women are allotted by rotation. Therefore, the unguided power given to the Deputy Commissioner and the State Government under sub-rule (3) and (4) of Rule 3 of the Rules 1998 is arbitrary and opposed to Section 162 of the parent Act, 1993 and Article 243-D of the Constitution.
Constitution of India - Article 226 - Writ jurisdiction - Interference with election issues - Bar under Article 243-O - No reference found therein with regard to allotment of seats by rotation in different constituencies - Bar not applicable - Hence, petition regarding such allotment can be entertained under Article 226. [H. L. Dattu and H. N. Nagamohan Das, JJ]: There is no reference in Article 243-0 with regard to the word rotation. The absence of the word rotation in Article 243-0 of the Constitution makes it clear that there is no bar for the Courts to exercise its judicial review in the matter of allotment of seats by rotation to different constituencies. There is no bar for this Court to entertain the writ petitions under Article 226 of the Constitution.
Cases Referred: AIR 1977 SC 740; AIR 1977 SC 1516; AIR 1978 SC 851; AIR 1981 SC 136; AIR 1988 SC 876; 1955 (5) SCC 346; AIR 1995 SC 1512; 1998 (1) SCC 285; ILR 2001 Kar. 5354; ILR 2002 Kar 35; 2002 (58) SCC 294; AIR 1955 SC 233; AIR 1960 SC 440; AIR 1967 SC 1189; AIR 1980 SC 882; AIR 1981 SC 463; AIR 1989 SC 1160; ILR 1997 Kar 2078; ILR 2000 Kar 2941; 2000 (8) SCC 216; 2002(2) SCC 7; (2000) 8 SCC 216; ILR 2000 Kar 2941.
Followed: (2000) 8 SCC 216; ILR 2001 Kar 5354; AIR 1988 SC 876; AIR 1977 SC 1516.
Applied: (1983) 4 SCC 353.
Distinguished: ILR 2000 Kar 2941.
Constitution of India - Article 243 D - may be by rotation - Interpretation - Used as a command and not as discretion. [H. L. Dattu and H. N. Nagamohan Das, JJ]: The Election Commission allotted seats reserved for SCs and STs by taking into consideration the population of the reserved categories in the respective taluks and one each to every taluk in a district. By perpetuation of reservation in certain constituencies will deprive the other community people in the same constituency from contesting the elections. There is force in this submission of the Learned Senior Counsel and we accept the same. Therefore, the allotment of seats on the basis of population and by Talukwise is contrary to Article 243-D of the Constitution. Article 243-D of the Constitution and Section 162 of the Act 1993, specifies that the reserved seats for Scheduled Tribes and Scheduled Caste are to be allotted by rotation to different Constituencies in a Panchayat. But as per sub-rule (1) and (2) of Rule 3 of the Rules 1998, the 1 st respondent State Election Commission allotted the seats Taluk wise and on the basis of population and as much the same is contrary to the requirement of Article 243-D of the Constitution and Section 162 of the Act, 1993.
Cases Referred: AIR 1977 SC 740; AIR 1977 SC 1516; AIR 1978 SC 851; AIR 1981 SC 136; AIR 1988 SC 876; 1955 (5) SCC 346; AIR 1995 SC 1512; 1998 (1) SCC 285; ILR 2001 Kar. 5354; ILR 2002 Kar 35; 2002 (58) SCC 294; AIR 1955 SC 233; AIR 1960 SC 440; AIR 1967 SC 1189; AIR 1980 SC 882; AIR 1981 SC 463; AIR 1989 SC 1160; ILR 1997 Kar 2078; ILR 2000 Kar 2941; 2000 (8) SCC 216; 2002(2) SCC 7; (2000) 8 SCC 216; ILR 2000 Kar 2941.
Followed: (2000) 8 SCC 216; ILR 2001 Kar 5354; AIR 1988 SC 876; AIR 1977 SC 1516.
Applied: (1983) 4 SCC 353.
Distinguished: ILR 2000 Kar 2941.
Constitution of India - Article 243-O - Exercise of writ jurisdiction - Interference with election issues - Bar under Article 243-O - No reference found therein with regard to allotment of seats by rotation in different constituencies - Bar not applicable - Hence, petition regarding such allotment can be entertained under Article 226. [H. L. Dattu and H. N. Nagamohan Das, JJ]: There is no reference in Article 243-0 with regard to the word rotation. The absence of the word rotation in Article 243-0 of the Constitution makes it clear that there is no bar for the Courts to exercise its judicial review in the matter of allotment of seats by rotation to different constituencies. There is no bar for this Court to entertain the writ petitions under Article 226 of the Constitution.
Cases Referred: AIR 1977 SC 740; AIR 1977 SC 1516; AIR 1978 SC 851; AIR 1981 SC 136; AIR 1988 SC 876; 1955 (5) SCC 346; AIR 1995 SC 1512; 1998 (1) SCC 285; ILR 2001 Kar. 5354; ILR 2002 Kar 35; 2002 (58) SCC 294; AIR 1955 SC 233; AIR 1960 SC 440; AIR 1967 SC 1189; AIR 1980 SC 882; AIR 1981 SC 463; AIR 1989 SC 1160; ILR 1997 Kar 2078; ILR 2000 Kar 2941; 2000 (8) SCC 216; 2002(2) SCC 7; (2000) 8 SCC 216; ILR 2000 Kar 2941.
Followed: (2000) 8 SCC 216; ILR 2001 Kar 5354; AIR 1988 SC 876; AIR 1977 SC 1516.
Applied: (1983) 4 SCC 353.
Distinguished: ILR 2000 Kar 2941.
Article 226 - Writ jurisdiction - Interference with election issues - Bar under Article 243-O - No reference found therein with regard to allotment of seats by rotation in different constituencies - Bar not applicable - Hence, petition regarding such allotment can be entertained under Article 226.
[H. L. Dattu and H. N. Nagamohan Das, JJ]: There is no reference in Article 243-0 with regard to the word rotation. The absence of the word rotation in Article 243-0 of the Constitution makes it clear that there is no bar for the Courts to exercise its judicial review in the matter of allotment of seats by rotation to different constituencies. There is no bar for this Court to entertain the writ petitions under Article 226 of the Constitution.
Cases Referred: AIR 1977 SC 740; AIR 1977 SC 1516; AIR 1978 SC 851; AIR 1981 SC 136; AIR 1988 SC 876; 1955 (5) SCC 346; AIR 1995 SC 1512; 1998 (1) SCC 285; ILR 2001 Kar. 5354; ILR 2002 Kar 35; 2002 (58) SCC 294; AIR 1955 SC 233; AIR 1960 SC 440; AIR 1967 SC 1189; AIR 1980 SC 882; AIR 1981 SC 463; AIR 1989 SC 1160; ILR 1997 Kar 2078; ILR 2000 Kar 2941; 2000 (8) SCC 216; 2002(2) SCC 7; (2000) 8 SCC 216; ILR 2000 Kar 2941.
Followed: (2000) 8 SCC 216; ILR 2001 Kar 5354; AIR 1988 SC 876; AIR 1977 SC 1516.
Applied: (1983) 4 SCC 353.
Distinguished: ILR 2000 Kar 2941.
Article 243 D - may be by rotation - Interpretation - Used as a command and not as discretion.
[H. L. Dattu and H. N. Nagamohan Das, JJ]: The Election Commission allotted seats reserved for SCs and STs by taking into consideration the population of the reserved categories in the respective taluks and one each to every taluk in a district. By perpetuation of reservation in certain constituencies will deprive the other community people in the same constituency from contesting the elections. There is force in this submission of the Learned Senior Counsel and we accept the same. Therefore, the allotment of seats on the basis of population and by Talukwise is contrary to Article 243-D of the Constitution. Article 243-D of the Constitution and Section 162 of the Act 1993, specifies that the reserved seats for Scheduled Tribes and Scheduled Caste are to be allotted by rotation to different Constituencies in a Panchayat. But as per sub-rule (1) and (2) of Rule 3 of the Rules 1998, the 1 st respondent State Election Commission allotted the seats Taluk wise and on the basis of population and as much the same is contrary to the requirement of Article 243-D of the Constitution and Section 162 of the Act, 1993.
Cases Referred: AIR 1977 SC 740; AIR 1977 SC 1516; AIR 1978 SC 851; AIR 1981 SC 136; AIR 1988 SC 876; 1955 (5) SCC 346; AIR 1995 SC 1512; 1998 (1) SCC 285; ILR 2001 Kar. 5354; ILR 2002 Kar 35; 2002 (58) SCC 294; AIR 1955 SC 233; AIR 1960 SC 440; AIR 1967 SC 1189; AIR 1980 SC 882; AIR 1981 SC 463; AIR 1989 SC 1160; ILR 1997 Kar 2078; ILR 2000 Kar 2941; 2000 (8) SCC 216; 2002(2) SCC 7; (2000) 8 SCC 216; ILR 2000 Kar 2941.
Applied: (1983) 4 SCC 353.
Distinguished: ILR 2000 Kar 2941.
Followed: (2000) 8 SCC 216; ILR 2001 Kar 5354; AIR 1988 SC 876; AIR 1977 SC 1516.
Article 243-D -Object of reservation - Is to remove inequalities and to empower weaker sections of society, reservations are provided. See, Karnataka Panchayat Raj Act, 1993 - S. 162.
Election matters
KARNATAKA PANCHAYAT RAJ ACT, 1993 Section 162 - Election matters - Exercise of writ jurisdiction - Interference with election issues - Bar under Article 243-O - No reference found therein with regard to allotment of seats by rotation in different constituencies - Bar not applicable - Hence, petition regarding such allotment can be entertained under Article 226.
[H. L. Dattu and H. N. Nagamohan Das, JJ]:There is no reference in Article 243-0 with regard to the word rotation. The absence of the word rotation in Article 243-0 of the Constitution makes it clear that there is no bar for the Courts to exercise its judicial review in the matter of allotment of seats by rotation to different constituencies. There is no bar for this Court to entertain the writ petitions under Article 226 of the Constitution.
Object of reservation
KARNATAKA PANCHAYAT RAJ ACT, Section 162 - Object of reservation - Is to remove inequalities and to empower weaker sections of society, reservations are provided.
[H. L. Dattu and H. N. Nagamohan Das, JJ]: If certain sections are deprived share in actual power, then there exits no real democracy. In the absence of reservation in favour of ST, SC, BC and women, there is a possibility of power and authority sleeping into the hands of those who are economically and socially advanced. Denial of legitimate share for centuries in the political power or decision making process has been held to be a cause for social and educational backwardness. The empowerment of these Sections in these areas can as well as conducive to their advancement in the rest of the areas in their lives. It is in this background to remove the inequalities and to empower the weaker section of our society the reservation in local bodies is provided. Further, by rotation of these reserved seats to different constituencies is to reach all sections in a Panchayat.
Election matters
KARNATAKA PANCHAYAT RAJ ACT, 1993 - Election matters - Exercise of writ jurisdiction -Interference with election issues -Bar under Article 243-O - No reference found therein with regard to allotment of seats by rotation in different constituencies - Bar not applicable -Hence, petition regarding such allotment can be entertained under Article 226.
[H. L. Dattu and H. N. Nagamohan Das, JJ]: There is no reference in Article 243-0 with regard to the word rotation. The absence of the word rotation in Article 243-0 of the Constitution makes it clear that there is no bar for the Courts to exercise its judicial review in the matter of allotment of seats by rotation to different constituencies. There is no bar for this Court to entertain the writ petitions under Article 226 of the Constitution.
Cases Referred: AIR 1977 SC 740; AIR 1977 SC 1516; AIR 1978 SC 851; AIR 1981 SC 136; AIR 1988 SC 876; 1955 (5) SCC 346; AIR 1995 SC 1512; 1998 (1) SCC 285; ILR 2001 Kar. 5354; ILR 2002 Kar 35; 2002 (58) SCC 294; AIR 1955 SC 233; AIR 1960 SC 440; AIR 1967 SC 1189; AIR 1980 SC 882; AIR 1981 SC 463; AIR 1989 SC 1160; ILR 1997 Kar 2078; ILR 2000 Kar 2941; 2000 (8) SCC 216; 2002(2) SCC 7; (2000) 8 SCC 216; ILR 2000 Kar 2941.
Applied: (1983) 4 SCC 353.
Distinguished: ILR 2000 Kar 2941.
Followed: (2000) 8 SCC 216; ILR 2001 Kar 5354; AIR 1988 SC 876; AIR 1977 SC 1516.
Validity
KARNATAKA PANCHAYAT RAJ ACT, 1993 - Validity - Are ultra vires of Article 243 of the Constitution and S. 162 of the Karnataka Panchayat Raj Act, 1993.
[H. L. Dattu and H. N. Nagamohan Das, JJ]: It is held that the Karnataka Panchayat Raj (Reservation of Seats in Taluk Panchayats and Zilla Panchayats by Rotation) Rules, 1998 as ultra vires and void. V
( 1 ) FATHER of the Nation Mahatma Gandhi wrote in the weekly 'harijan' as under:
" true Democracy cannot be worked by twenty men sitting at the center. It has to be worked from below by the people of every village. . . . "
"independence must begin at the bottom. Thus, every village will be a republic or Panchayat having full powers. It follows, therefore, that every village has to be self-sustained and capable of managing its affairs even to the extent of defending itself against the whole world. It will be trained and prepared to perish in the attempt to defend itself against any on slaught from without. Thus, ultimately, it is individual who is the unit. This does not exclude dependence on and willing help from neighbours or from the world. It will be free and voluntary play of mutual forces. Such a society is necessarily highly cultured in which every man and woman knows what he or she wants and, what is more, knows that no one should want anything that others cannot have with equal labour".
( 2 ) AFTER independence, India became Republic in 1950 by accepting the world's biggest written constitution. The preamble of the Constitution reads as under:" we, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVERIGN socialist SECULAR DEMOCRATIC Republic and to secure to all its citizens: justice, Social, Economic and Political; liberty of thought, expression, belief, faith and workship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation: in OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY adopt, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION". Under Chapter IV of our Constitution the Directive Principles of State Policy, Article 40 emphasises that the State shall take steps to organise Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-governance. Time and again the Supreme Court of India emphasised that social justice and decentralisation of powers as also the basic features of our Constitution. Pursuant to this constitutional imperative of decentralisation of powers and social justice then the Government of Mysore brought a legislation called the Mysore Village Panchayats and Local Boards Act, 1959. Under this Act of 1959 elections to the Panchayats were held during 1960 by giving due representation to women, Scheduled Caste and Scheduled Tribes, Subsequently the Government of Karnataka replaced the Act, of 1959 by a new Act called Karnataka Zilla Parishads, Taluk panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983.
( 3 ) REALISING the importance of local self governance units in building the nation, the law makers brought to the fore by 73rd amendment to the Indian Constitution the role of Panchayats or village Councils. By this 73rd amendment to the Constitution the excluded sections of the society were included in governance by making special provisions for Scheduled Tribes, scheduled Castes, Backward Communities and Women. The reservation to these categories is an discriminated communities to move away from discrimination and segregation. In order to achieve this object of 73rd amendment of the Constitution the Government of Karnataka legislated the Karnataka Panchayat Raj Act, 1993 (for short 'act of 1993') providing a three tyre system i. e. , Gram Panchayats, Taluk Panchayats and Zilla Panchayats. Under the Act of 1993, reservation for Scheduled Tribes, Scheduled Castes, Backward Communities and women is provided. Under the Act, of 1993 the first election was held in the year 1995 and the second election was held in 2000. The term of five years of second election will come to an end by middle of July 2005. The preparation for third term of election is on.
( 4 ) THE Report of 2001 census came to be published in the month of August 2004. On the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
