Abdul Azeez vs State of Karnataka

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Kar) 9

High Court of Karnataka
H.G. RAMESH, J.
Abdul Azeez & Others
Versus
The State of Karnataka by its Secretary To Government & Others
Writ Petition Nos. 38256 of 2013 (LB-RES), 39203 & 39629, 39421, 39786-789, 40835, 38713, 39015, 39941, 43581, 45374 & 45855-857, 38395-401 (LB-ELE), 38822 (LB-RES), 38996, 39002, 39219, 39284-285, 39353, 39665-666, 40245-247, 41309, 41809, 47293 of 2013 (LB-ELE)
Decided on: 06-01-2014

Advocates Appeared:
For the Appearing Parties:Jayakumar S. Patil, Sr. Advocate A/W Devi Prasad Shetty, Prof. Ravivarma Kumar, Advocate General a/w D. Nagaraj, AGA S. Viswajith Shetty, A. Niranjan Kumar, P.S. Malipatil, I.G. Gachchinamath, H.C. Shivaramu, K. Chandranath Ariga, K.N. Panindra, G.R. Prakash, A.P. Patil, Y.H. Vijay Kumar, G.D. Aswathanarayana, R. Subramanya, M.R. Rajagopal, A.V. Gangadarappa, A. Nagarajappa, T.B. Sandesh, K. Prakasha Hegde, M.G.S. Kamal for M/s. Kamal & Banu, K. Ravishankar, V. Srinivas, D.L. Jagadeesh, Adinarayanappa for M/s. A.N.N. Associates, Ramesh Chandra, Adithya Sondhi, S.S. Halalli, N.R. Naik, A.V. Nishanth, K.N. Rakshit, Desai Sharanabasppa Viranna, M.A. Subramani, Dhyan Chinnappa, N. Ravindranath, Subhash Kowdichar, Advocates.

Headnote:KARNATAKA MUNICIPALITIES ACT, 1964 - Section 42 & Karnataka Municipalities (President and Vice-President) Election Rules, 1965: [H.G. Ramesh, J] Challenge to guidelines issued by State Government regarding reservation of Offices of the Presidents and Vice-Presidents of City Municipal Councils, TMCs and Town Panchayats by rotation vide G.O. No. UDD 73 MLR 2013 as ultra vires the Karnataka Municipalities Act, 1964 - Held, an elementary test to find out as to whether the principle of rotation is violated or not, is to examine as to whether any allotment to a reserved category is repeated in any Municipality before commencement of a fresh cycle of rotation for that category. If there is any allotment to any reserved category for the second time in a Municipality before completion of a cycle of rotation or before commencement of a fresh cycle of rotation for that category, it would be a clear violation of the principle of rotation. The principle of rotation as explained above is not followed by the State Government while making allotments in the impugned notifications. Allotments made to several reserved categories in a large number of municipalities are ’repetitions’. It is also not the case of the State Government that there are no ’repetitions’ in the allotments made in the impugned notifications. The Rules framed by the State Government under both the Municipal Acts do not provide for the principle of rotation as explained above. This is evident by the very allotments made in the impugned notifications. The Rules framed by the State Government under both the Municipal Acts do not provide for the principle of rotation as explained above. This is evident by the very allotments made in the impugned notifications. The State Government is duty bound to amend the existing rules or to frame new rules to give effect to the principle of rotation which is the mandate of the Legislature. The State Government appears to be under an erroneous impression that whatever it provides under the rules would become the principle of rotation. The Government is empowered by the legislature under the two provisos referred to above to frame Rules to give effect to the principle of rotation as explained above being what the legislature intended by ’rotation’. The Rule making power given to the Government is not to frame its own policy of rotation as is done under Rule 73-A(5) of the Karnataka Municipal Corporations (Election) Rules, 1979.
Under no circumstance, the Rules can permit ’repetition’. If any Rule permits or enables repetition, that Rule is ultra vires the principle of rotation and hence ultra vires the Parent Act. The Rules, to be valid, should be framed in such a way that there shall be no scope for ’repetition’. The State Government has acted against the principle of rotation in making the allotments in the impugned notifications resulting in violation of Article 243U of the Constitution of India. The State Government shall now give effect to the principle of rotation as explained above by strictly avoiding ’repetition’ of allotments to any reserved category by taking into consideration all the previous allotments made in each of the Municipalities as any contravention of the principle of rotation would be violative of the legislative mandate contained in Section 42(2A) of the Karnataka Municipalities Act and Section 10(1A) of the Municipal Corporations Act. Allotment of offices of Chairperson and Vice-Chairpersons to the various reserved categories in the impugned notifications to the extent they are repetitions was set aside. State Government was given liberty to redo all the allotments made in impugned notifications in conformity with principle of rotation.

JUDGMENT

In these writ petitions, the challenge is to the following four notifications issued by the State Government allotting offices of Chairpersons and Vice Chairpersons to the various reserved categories in the Municipal Corporations, City Municipal Councils, Town Municipal Councils & Town Panchayats referred to therein.

1) Notification No. UDD 118 MLR 2013, Bangalore, dated 21.08.2013 issued in respect of Municipal Corporations,

2) Notification No. UDD 117 MLR 2013(1), Bangalore, dated 23.08.2013 issued in respect of City Municipal Councils,

3) Notification No. UDD 117 MLR 2013(2), Bangalore, dated 23.08.2013 issued in respect of Town Municipal Councils,

4) Notification No. UDD 117 MLR 2013(3), Bangalore, dated 23.08.2013 issued in respect of Town Panchayats.

2. In some of the writ petitions (W.P.Nos.38395 to 38401 of 2013), the petitioners have prayed for a declaration that Rules 13 & 13A of the Karnataka Municipalities (President and Vice President) Election Rules, 1965 and the Guidelines issued by the State Government regarding reservation of offices of the Presidents and Vice Presidents of City Municipal Councils, Town Municipal Councils and Town Panchayats by rotation as per Government order No. UDD 73 MLR 2013, Bangalore, dated 04.05.2013 are ultra vires the Karnataka Municipalities Act, 1964. They have also prayed for a direction to the State Government to frame Rules to give effect to the principle of rotation envisaged in Section 42 of the Karnataka Municipalities Act, 1964.

3. As the question of law raised is the same in all these writ petitions, they were heard together and are disposed of by this common order.

4. The petitioners have challenged the aforesaid notifications on the sole ground that the allotments made under the notifications violate the principle of rotation provided under the provisions of the Karnataka Municipal Corporations Act, 1976 ('the Municipal Corporations Act' for short) and the Karnataka Municipalities Act, 1964 ('the Municipalities Act' for short), for reservation of offices of Chairpersons and Vice Chairpersons in the Municipalities of the State.

4.1 Learned Counsel for the petitioners submitted that the allotment of offices made in the impugned notifications is arbitrary and is violative of the principle of rotation provided under the two Municipal Acts referred to above. The Allotments are not rotated but are repeated. The principle of rotation is followed only in its breach and it is hardly followed in any of the previous terms also. They further submitted that the Rules also do not provide for rotation as mandated by the Legislature.

4.2 Learned Advocate General raised a preliminary objection regarding maintainability of these writ petitions on the ground that there is a bar under Article 243ZG of the Constitution of India to entertain these petitions and therefore, the writ petitions are liable to be dismissed. He referred to several judgments of the Supreme Court rendered in the context of Article 329(b) of the Constitution of India. He submitted that the petitioners have a statutory remedy under the respective Municipal Acts and the Rules made thereunder and hence, the petitioners can challenge the impugned notifications by filing an election petition before the Jurisdictional District Judge. He also submitted that repetition is not opposed to rotation and therefore, the impugned notifications do not warrant any interference by this Court.

5. This Court in a similar matter in H.Shivappa v. State of Karnataka [2005(4) Kar.L.J. 328] had an occasion to consider the very contentions now urged by the learned Advocate General regarding maintainability of the writ petitions. On a very detailed consideration of the matter, this Court rejected the said contentions and held that the writ petitions were maintainable. I am in respectful agreement with the said view. Suffice to refer to the following observations made therein:

35. It is in the light of such rival contentions, the prelimina

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