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2019 Supreme(Kar) 307
IN THE HIGH COURT OF KARNATAKA
B.M. SHYAM PRASAD, J.
N.P. Hemanthkumar - Appellant
Versus
Principal Secretary Department Of Urban Development - Respondent
Writ Petition No. 21239, 21257, 21241, 21242, 21243 of 2019
Decided on : 13-05-2019
Advocate Appeared:
D.N. Nanjunda Reddy, Adv., S.V. Giri Kumar, Adv., K.N. Phaneendra, Adv., Nagarajappa A., Adv., M. Shivaprakaash, Adv.
Headnote:
Constitution of India,1950 - Articles 243-U, ZG and 329 (b) - granted interim orders deferring the elections - Vacating the interim Order - Whether election process is commenced will have to be examined - Whether any particular stage can be said to be a part of the election process in that case - Whether, in the factual matrix as of today as regards upgrading/converting Town Municipal Council into a City Municipal Council and the into a Town Muncipality - Whether it could be said that the election process for the Nelamangala Town Municipality and Pattana Panchayat of Sorabha is commenced, and therefore, the bar under Article 243 - ZG of the Constitution of India would apply - Petitioner in WP No. 21239/2019 has asserted that he was elected a councillor to the Nelamangala Town Municipal Council in the year 2014 from Ward No. 20, and he was also previously elected a councillor of this Council. The petitioner is interested in the conversion of the Nelamangala Town Municipal Council into a City Municipal Council because of the increase in population. He has taken personal interest in this regard. Even the adjacent Grama Panchayats have resolved for their inclusion into the proposed City Municipal Council as is obvious from the enclosed annexures - proposal for conversion of the Nelamangala Town Municipal Council is made for the first time in the year 2015. The Director of Municipal Administration vide the Communication - Municipal Council into a City Municipal Council including the adjacent Grama Panchayats. This Communication dated 03.08.2018 is preceded by the appropriate Resolutions and correspondences – Held, There is no disharmony between the constitutional mandate under Article 243 - ZA of the Constitution of India and the provisions of Section 38 of the Municipalities Act or Rule 8 of the Municipalities Rules, and in fact there is nothing in Section 38 of the Municipalities Act or Rule 8 of the Municipalities Rules to indicate that that either the State Legislature or the State Government intended to vest in the Deputy Commissioners a power that would be inconsonance with the absolute mandate in the State Election Commission - consistent scheme, as is obvious from the aforesaid provisions, is that the superintendence, direction and control for the conduct of elections to the Municipalities vest with the State Election Commission, and the Deputy Commissioner shall with the approval of the State Election Commission, notify the intended election in the prescribed Form - Municipalities Act, and in a manner of granting approval under Rule 8 of the Municipalities Rules, has specified inter alia the date upon which the election to the municipalities shall be held imposing Code of Conduct much before the date of the present petitions - Shall follow that the election process is commenced with the issuance of the impugned notification dated 02.05.2019 by the State Election Commission, and even before the date of the petitions - Writ petitions are dismissed
B.M. Shyam Prasad, J.
This Court on 08/05/2019, granted interim orders deferring the elections to the Nelamangala Town Municipality and Pattana Grama Panchayat for a period of four weeks upon hearing Sri. Nanjunda Reddy, the learned Senior Counsel for the petitioners. But, today, on the mention being made by the learned counsel for the State Election Commission, the petitions were directed to be listed for consideration of the application IA No. 2/2019 filed for vacating the interim Order dated 08/05/2019. However, Sri. Nanjunda Reddy, the learned Senior counsel for the petitioners in W.P. No. 21257/2019, Sri. A Nagarajappa, the learned counsel for the petitioner in. W.P. No. 21239/2019, Sri. M Shivprakash, the learned Counsel for the petitioners in W.P. No. 21241-21243/2019, Sri. K N Phanindra, the learned Senior Counsel for the State Election Commission, and the learned Additional Government Advocate for the other contesting respondents consent for final disposal of the petitions, and they are accordingly heard after dispensation of notice to the other respondents.
2. The petitioner in WP No. 21239/2019 has asserted that he was elected a councillor to the Nelamangala Town Municipal Council in the year 2014 from Ward No. 20, and he was also previously elected a councillor of this Council. The petitioner is interested in the conversion of the Nelamangala Town Municipal Council into a City Municipal Council because of the increase in population. He has taken personal interest in this regard. Even the adjacent Grama Panchayats have resolved for their inclusion into the proposed City Municipal Council as is obvious from the enclosed annexures. The proposal for conversion of the Nelamangala Town Municipal Council is made for the first time in the year 2015. The Director of Municipal Administration vide the Communication dated 03.08.2018 has forwarded to the State Government the recommendation for conversion of Nelamangala Town Municipal Council into a City Municipal Council including the adjacent Grama Panchayats. This Communication dated 03.08.2018 is preceded by the appropriate Resolutions and correspondences. On 03.05.2019, the State Government has written to the State Election Commission bringing to its notice that the State Cabinet on 25.02.2019, has approved the upgradation of Nelamangala Town Municipal Council and the concerned file was also placed before his Excellency, the Governor for necessary Notification as required under section 9 of the Karnataka Municipalities Act, 1964 (for short, 'the Municipalities Act'). However, His Excellency, the Governor has returned the file for resubmission after the code of conduct, which is in force because of the ongoing parliamentary elections, ceases to operate. As such, the State Election Commission should consider holding elections to the upgraded/converted City Municipal Council after the exercise of delimitation of the wards and reservation is completed pursuant to the notification to be issued for such upgradation/conversion. However, the State Election Commission has issued the impugned Notification dated 02.05.2019 to hold elections to municipalities, including the Nelamangala Town Municipal Council, specifying the date for elections. The impugned Notification dated 02.05.2019 is without application of mind, and would holding elections, pursuant thereto, would be a futile exercise.
3. The petitioner in WP No. 21257/2019 has also asserted that he has been elected for two terms as a councillor of Nelamangala Town Municipal Council, and he has been the President of the said Municipal Council between 2007 and 2013 as well as between 2013 and 2019. As such, the petitioner is interested in the functioning of the Municipal Council. The petitioner, while asserting facts similar to the assertions in the earlier writ petition in WP No. 21239/2019, has submitted that the transitional area of Nelamangala was specified to be the Town Panchayat of Nelamangala in the year 1996 under t
