Point of Law : Proviso to Article 243R(2) does not apply to the election of Chairperson of Municipality concerned, the same also does not deserve acceptance, as the proviso specifically bars the nominated members who oath in the meetings of Municipality.

ORDER :

The petitioners who are nominated councilors of Malur Town Municipal Council (hereinafter referred to as ‘the Council’ for short) in this petition have prayed for the following reliefs:

(i) Call for records pertaining to Letter bearing NO.ELN/CR/32/2020-21 dated 22.12.2021 issued by the 2nd respondent (Annexure C)

(ii) Declare that the petitioners as nominated councilors are entitled to cast their vote in the election for the post of President/Vice President under Section 42(2) of the Karnataka Municipalities Act,1964

(iii) Declare that the votes cast by the Petitioners in election held on 30.12.2021 for the post of President in Respondent No.3 Council as valid and sustainable in law.

In the alternative

(iv) Declare that the proviso to Section 11(1) (b) of the Karnataka Municipalities Act, 1964 is ultra vires Article 14 of the Constitution of India and is unconstitutional.

Or read down the proviso to Section 11(1)(b) of the Karnataka Municipalities Act, 1964 as not applying to elections to the post of President and Vice-President of the Municipal Council held under Section 42(2) of the Karnataka Municipalities Act, 1964 and the rules framed thereunder.

(v) Declare that the proviso to Article 243-R (2)(a) of the Constitution of India is ultra vires Article 14 of the Constitution of India and contrary to the basic structure of the Constitution.

Or read down the proviso to Article 243-R (2)(a) of the Constitution as not applying to the post of President and the vice president of the Municipal Council held under Section 42(2) of the Karnataka Municipalities Act, 1964 and the rules framed there under.

(vi) Declare that the Petitioners are entitled to participate and cast their vote in the election for the post of President, Malur Town Municipal Corporation by virtue of being nominated councilors of the Malur Town Municipal Council under the provisions of Karnataka Municipalities Act, 1964.

(vii) Grant cost of these proceedings; and

(viii) Pass such orders or directions as this Hon'ble Court may deem fit in the facts and circumstances of the case.

2. The Council was constituted on 20.05.2018, which has 29 elected members as well as 4 nominated members and one member of Legislative Assembly. The President of the Council was elected on 20.11.2020. The petitioners were nominated as Councilors of the Council on 27.02.2021. The Tahsildar and Election Officer issued calendar of events by which election to the post of President of the Council was notified and the same was scheduled to be held on 30.12.2021.The petitioners who are the nominated members of the Council, filed a writ petition, in which inter alia declaration was sought to the effect that they are entitled to participate in the process of election to the post of President of the Council. A bench of this court by an interim order dated 29.12.2021 permitted the petitioners to participate in the process of election for the post of President of the Council subject to final decision of the writ petition.

3. An election was held on 30.12.2021, in which the petitioners cast their votes for the election to the post of the President of the Council. The petitioner in WP No.834/2022 filed an I.A. for impleading on 10.01.2022 in W.P.No.24308/2021, filed by the petitioners. The petitioner in WP No.834/2022 thereafter withdrew the interlocutory application for impleading on 07.02.2022. Thereafter, a bench of this court vide order dated 22.02.2022 permitted the petitioners in W.P.No.24308/2021 to withdraw the writ petition with the liberty as prayed for and extended the interim order for a period of 7 days. In the aforesaid factual background, this petition has been filed.

4. Learned Senior counsel for the petitioner submitted that the petitioners who are nominated councilors of Malur Town Municipal Council have assailed the validity of section 11(1)(b) of the Karnataka Municipalities Act, 1964 as well as the Constitutional validity of proviso to Article 243-R(2)(a) of the Constitution of India on