Vishwanatha H M vs. State Of Karnataka

1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

th
DATED THIS THE 19 DAY OF AUGUST, 2021

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.13944/2021 (LB-ELE)

R
C/W
WRIT PETITION No.13902/2021 (LB-ELE)
WRIT PETITION No.9538/2021 (LB-ELE)
WRIT PETITION No.12616/2021 (LB-ELE)
IN WRIT PETITION No.13944/2021

BETWEEN:

1. MR.LINGAPPA GOUDORU
S/O SHIVALINGAPPA
AGED ABOUT 71 YEARS
RESIDENT OF NEAR BUS STAND
JALIHALA WARD NO.2,
SIDHANURU TALUK
RAICHUR DISTRICT – 584 128.

2. SRI BASANAGOUDA
S/O SIDDNA GOUDA
AGED ABOUT 51 YEARS
RESIDENT OF JAMBUNATHANA HALLI,
POST JALIHAL, SIDHANURU TALUK
RAICHUR DISTRICT – 584 128.

3. NAGOJAPPA
S/O MUDUKPPA
AGED ABOUT 41 YEARS



2
RESIDENT OF NO.08,
GRAM PANCHAYAT
NEAR JALIHAL, SIDHANURU TALUK
RAICHUR DISTRICT – 584 128.

4. ANNAPPA HUDEDA
S/O BASAPPA HUDEDA
AGED ABOUT 56 YEARS
RESIDENT OF NEAR YELLAMMA TEMPLE
JALIHALA WARD NO.2,
SIDHANURU TALUK
RAICHUR DISTRICT – 584 128.
... PETITIONERS

(BY SRI JAYAKUMAR S.PATIL, SR. ADVOCATE A/W
SRI A.MAHAMMED TAHIR, ADVOCATE (VIDEO
CONFERENCING))

AND:

1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKAS SOUDHA, BENGALURU – 560 001
REPRESENTED BY SECRETARY.

2. THE KARNATAKA STATE ELECTION COMMISSION
ST
NO.08, 1 FLOOR, KSCMF BUILDING ANNEX,
CUNNINGHAM ROAD,
BENGALURU – 560 052.

3. THE DEPUTY COMMISSIONER
RAICHUR DISTRICT
RAICHUR – 584 128.

4. THE RAICHUR ZILLA PANCHAYAT
RAICHUR – 584 128
REPRESENTED BY ITS EO.
... RESPONDENTS

(BY SRI NITHYANANDA K.R., HCGP FOR R1, 3 AND R4



3
(PHYSICAL HEARING),
SRI K.N.PHANINDRA, SR. ADVOCATE FOR
SMT.VAISHALI HEGDE, ADVOCATE FOR R2
(VIDEO CONFERENCING))

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTIFICATION DTD. 01.04.2021 VIDE ANNX-D
PASSED BY R-2 IN THE INTEREST OF JUSTICE AND
EQUITY; CONSEQUENTLY, QUASH THE NOTIFICATION
DTD. 01.07.2021 VIDE ANNX-E PASSED BY R-2 IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.,

IN WRIT PETITION No.13902/2021

BETWEEN:

1. SRI BHEEMAYYA
S/O DAADA SIDDAPPA
AGED ABOUT 30 YEARS
R/A. NO.23, MALIYABAD
RAICHUR TALUK,
RIACHUR DISTRICT – 584 101.

2. SRI MALLESH S.,
S/O NARASINGAPPA
AGED ABOUT 51 YEARS
R/A. NO.86, SIDRAMPUR
RAICHUR TALUK
RAICHUR DISTRICT – 584 103.

3. RAGHAVENDRA
S/O JAMBAN GOUDA
AGED ABOUT 31 YEARS
R/A. NO.08, BIJANGERE,
RAICHUR TALUK,
RAICHUR DISTRICT – 584 103.

4. VENKATESH
S/O NARASIMHALU



4
AGED ABOUT 40 YEARS
R/A. NO. 2/148,
DEVANAPALLI,
RAICHUR TALUK,
RAICHUR DISTRICT – 584 101.

5. HANUMESH
S/O NALLA REDDI
AGED ABOUT 28 YEARS
R/A. NO.145, MALIYABAD
RAICHUR TALUK
RAICHUR DISTRICT – 584 101.

6. NAGENDRA
S/O ANJANEYYA
AGED ABOUT 41 YEARS
R/A. NO.2/152, DEVANAPALLI
RAICHUR TALUK,
RAICHUR DISTRICT – 584 101.

7. HUSENAPPA
S/O VENKATESH
AGED ABOUT 36 YEARS
R/A. NO.325, BIJANGERA,
MITTI MALKAPUR,
RAICHUR TALUK
RAICHUR DISTRICT – 584 103.

8. HANMANTH
S/O KUKKALAYYA
AGED ABOUT 43 YEARS
R/A. NO.257, MALIYABAD
RAICHUR TALUK,
RAICHUR DISTRICT – 584 103.

9. LOKESH
S/O GOVT. NARSIMHA
AGED ABOUT 41 YEARS
R/A. NO.01/58/1,
DEVANAPALLI,



5
RAICHUR TALUK,
RAICHUR DISTRICT – 584 101.
... PETITIONERS

(BY SRI JAYAKUMAR S.PATIL, SR. ADVOCATE A/W
SRI A.MAHAMMED TAHIR, ADVOCATE (VIDEO
CONFERENCING))

AND:

1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKAS SOUDHA, BENGALURU – 560 001
REPRESENTED BY SECRETARY.

2. THE KARNATAKA STATE ELECTION COMMISSION
ST
NO.08, 1 FLOOR, KSCMF BUILDING ANNEX,
CUNNINGHAM ROAD
BENGALURU – 560 052.

3. THE DEPUTY COMMISSIONER
RAICHUR DISTRICT
RAICHUR – 584 128.

4. THE RAICHUR ZILLA PANCHAYAT
RAICHUR – 584 128
REPRESENTED BY ITS EO.
... RESPONDENTS

(BY SRI NITHYANANDA K.R., HCGP FOR R1, 3 AND 4
(PHYSICAL HEARING),
SRI K.N.PHANINDRA, SR. ADVOCATE FOR
SMT.VAISHALI HEGDE, ADVOCATE FOR R2
(VIDEO CONFERENCING))

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTIFICATION DATED 01.04.2021 VIDE
ANNEXURE-D PASSED BY R2; CONSEQUENTLY QUASH



6
THE NOTIFICATION DATED 01.07.2021 VIDE ANNEXURE-E
PASSED BY R2 AND ETC.,

IN WRIT PETITION No.9538/2021
BETWEEN:

1. VISHWANATHA H.M.,
S/O MAHALINGAIAH
AGED ABOUT 42 YEARS
R/A BARAKANAHAAL AT POST
HULIYUARU HOBALI
CHIKKANAYAKANAHALLI
TUMAKURU,
KARNATAKA – 572 214.

2. KESHAVAMURTHY R.,
S/O RAJANNA
AGED ABOUT 40 YEARS
R/AT KEMPARAYANAHATTI
THEERTHAPURA POST
KANDIKERE HOBALI
CHIKKANAYAKANAHALLI TALUK
TUMAKURU,
KARNATAKA – 572 228.

3. A.NIRANJANA MURTHY
S/O ADIMURTHY
AGED ABOUT 56 YEARS
R/AT YELLENAHALLI
HANDANAKERE HOBALI
BARAGURU POST
CHIKKANAYAKANAHALLI
TUMAKURU,
KARNATAKA – 572 214.
... PETITIONERS

(BY SRI MANMOHAN P.N., ADVOCATE (VIDEO
CONFERENCING))




7
AND:

1. STATE OF KARNATAKA
RURAL DEVELOPMENT AND
PANCHAYATH RAJ DEPARTMENT
M S BUILDING, BENGALURU-560001
REPRESENTED BY ITS
PRINCIPAL SECRETARY.

2. THE KARNATAKA STATE ELECTION COMMISSION
NO.8, KSCMF BUILDING ANNEXURE
CUNNINGHAM ROAD
BENGALURU-560052
REPRESENTED BY
ITS COMMISSIONER.
... RESPONDENTS

(BY SRI NITHYANANDA K.R., HCGP FOR R1 (PHYSICAL
HEARING)
SRI K.N.PHANINDRA, SR. ADVOCATE A/W
SMT.VAISHALI HEGDE, ADVOCATE (VIDEO
CONFERENCING))


THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTIFICATION DATED 31.03.2021 ISSUED BY
R-2 VIDE ANNEXURE-A IN SO FAR AS IT PERTAINS TO
CHIKKANAYAKANAHALLI TALUK; QUASH THE
NOTIFICATION DATED 31.03.2021 ISSUED BY R2 VIDE
ANNEXURE-C IN SO FAR AS IT PERTAINS TO
CHIKKANAYAKANAHALLI TALUK AND ETC.,

IN WRIT PETITION No.12616/2021
BETWEEN:

SRI M.V.BALARAJ
S/O VENKATASUBBA SHASTRY
AGED ABOUT 44 YEARS



8
NO.166, MANDIKAL VILLAGE,
CHIKKABALLAPURA TALUK
AND DISTRICT – 562 101.
... PETITIONER

(BY SRI MANMOHAN P.N., ADVOCATE (VIDEO
CONFERENCING))

AND:

1. STATE OF KARNATAKA
RURAL DEVELOPMENT AND
PANCHAYATH RAJ DEPARTMENT
M.S.BUILDING, BENGALURU – 560 001
REPRESENTED BY ITS
PRINCIPAL SECRETARY.

2. THE KARNATAKA STATE
ELECTION COMMISSION
NO.08, KSCMF BUILDING
ANNEXURE, CUNNINGHAM ROAD
BENGALURU – 560 052
REPRESENTED BY
ITS COMMISSIONER.

3. DEPUTY COMMISSIONER
D C OFFICE, DISTRICT OFFICES COMPLEX
SIDLAGHATTA ROAD,
CHIKKABALLAPURA – 562 101.
... RESPONDENTS

(BY SRI NITHYANANDA K.R., HCGP FOR R1 AND R3
(PHYSICAL HEARING),
SRI K.N.PHANINDRA, SR. ADVOCATE A/W
SMT.VAISHALI HEGDE, ADVOCATE FOR R2
(VIDEO CONFERENCING))

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTIFICATION DTD.29.3.2021 ISSUED BY



9
THE R-2 PRODUCED AS ANNEXURE-A IN SO FAR AS IT
PERTAINS TO ZILLA PANCHAYATH CONSTITUENCY OF
CHIKKABALLPAUR TALUK AND ETC.,

THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.08.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER

Petitioners in these petitions seek the following
prayers:

“IN W.P.No.13944/2021 & W.P.No.13902/2021

(a) Issue a writ in the nature of certiorari
quashing the Notification bearing
No.RACHUA/41/ZP/CV/TZP/2021
dated 01-04-2021 vide Annexure-D
passed by respondent No.2 in the
interest of justice and equity.

(a1) Issue writ in the nature of certiorari
quashing impugned Notification bearing
No.RACHUA/8/TZP/2021 dated
24.03.2021 vide Annexure-D1 passed
by respondent No.2 in the interest of
justice and equity.

(b) Consequently, issue a writ in the nature
of certiorari quashing the Notification
bearing No.RACHUA/75/ZP-
ME/TZP/2021 dated 01-07-2021 vide



10
Annexure-E passed by respondent No.2
in the interest of justice and equity.


(c) Issue a writ in the nature of mandamus
directing the respondent No.2-State
Election Commission to issue fresh draft
notification of reservation to 38
seats/constituencies as per Annexure-C
in the interest of justice and equity.

(d) Pass such other writ, order or direction
that this Hon’ble Court deems fit to pass
in the circumstances of the case.

IN W.P.No.9538/2021
(i) Issue a Writ of Certiorari and quash the
Notification dated 31.03.2021 issued
by respondent No.2 bearing No.
RaChuA/22 (TaPum-CV)/TZP/2021
(produced as ANNEXURE- “A”) insofar
as it pertains to Chikkanayakanahalli
Taluk;

(ii) Issue a Writ of Certiorari and quash the
notification dated 31.03.2021 issued by
respondent No.2 bearing no.
RaChuA/22/ (GPum-CV)/TZP/2021
(produced as ANNEXURE- “C”) insofar
as it pertains to Chikkanayakanahalli
Taluk;

(iii) Issue a Writ of mandamus directing
respondents to carry out the
delimitation of the constituencies of
Chikkanayakanahalli Taluk Panchayat



11
and that of Zilla Panchayat
constituencies of Chikkanayakanahalli
Taluk in accordance with the provisions
of Karnataka Gram Swaraj and
Panchayat Raj Act and the guidelines
dated 15.09.2015 issued by respondent
No.2 (produced as ANNEXURE- “E”);
and;

(iiiA) Issue a Writ of Certiorari and quash the
notification dated 24.03.2021 issued by
respondent No.2 bearing
No.RaChuA/8/TZP/2021 (produced as
ANNEXURE - “F”) insofar as it pertains
to Chikkanayakanahalli Taluk;

(iv) Pass such other and further orders as
deemed fit in the facts and
circumstances of the case in the interest
of justice and equity.

IN W.P.No.12616/2021
(i) Issue a Writ of Certiorari and quash the
notification dated 29.03.2021 issued by
respondent No.2 bearing no.
RaChuA/34/(GiPum- CV)/TZP/2021
(produced as ANNEXURE - “A” ) insofar
as it pertains to Zilla Panchayat
constituencies of Chikkaballapur Taluk;

(ii) Issue a Writ of Certiorari and quash the
notification dated 01.07.2021 issued by
respondent No.2 bearing no.
RaChuA/53/(GiPum- Mee)/TZP/2021
(produced as ANNEXURE- “G” ) insofar
as it pertains to reservation for Zilla



12
Panchayat constituencies of
Chikkaballapur Taluk;

(iii) Issue a Writ of Mandamus directing
respondents to carry out the
delimitation of Zilla Panchayat
constituencies of Chikkaballapur Taluk
in accordance with the provisions of
Karnataka Gram Swaraj and
Panchayat Raj Act and the guidelines
dated 15.09.2015 issued by respondent
No.2 (produced as ANNEXURE - “F” );

(iv) Issue a Writ of Mandamus directing the
respondent No.2 to consider the
representation dated 05.04.2021 issued
by the petitioner (produced as
ANNEXURE - “E” ); and,

(v) Pass such other and further orders as
deemed fit in the facts and
circumstances of the case in the interest
of justice and equity.”

2. Sans unnecessary details the facts that are
germane for consideration of the lis are as follows:
The petitioners in W.P.No.13944/2021 and
13902/2021 are all residents of Sidhanuru Taluk
coming under Raichur Zilla Panchayat and claimed to
be prospective candidates in the ensuing election to



13
respondent No.4 Raichur Zilla Panchayat which is
slated to be held in the year 2021.

3. The petitioners in W.P.No.9538/2021 are
residents of Chikkanaikanahalli Taluk and call in
question the delimitation notification insofar as it
concerns Chikkanaikanahalli taluk Panchayat.
Petitioners in W.P.No.12616/2021 are residents of
Chikkaballapur taluk and concerns Zilla Panchayat
constituencies of Chikkaballapur taluk. The petitioners
in these cases also claim to be aspirants to contest in
the ensuing elections in the respective constituencies.
The impugned notification though is a draft, the learned
Senior counsel and the learned counsel appearing for
the petitioners submit that they would not file the
objections and pursue the challenge, as according to
them the impugned notification dated 01.07.2021 is
contrary to law and without jurisdiction. They would
also submit that the notification of demarcation of



14
boundaries issued in March 2021 has also been
questioned. Therefore, these petitions are considered
on its merit and the impugned draft notification would
be referred to as ‘the impugned notification’ for the sake
of convenience.

4. Census was carried out by Government of
Karnataka in the year 2011 and the same was
published in the Official Gazette as official figures of the
year 2011. On 15-09-2015 the Election Commission
issued a circular depicting guidelines for delimitation of
constituencies of Zilla and Taluk Panchayats. In terms
of guideline No.3 of the said circular all the
constituencies, as far as practicable, be geographically
compact areas and in delimiting regard shall be had to
the physical features, facilities, communication and
public convenience. Guideline No.4 directed that while
determining constituencies there shall be no
appreciable difference of population of each of the



15
constituencies. Guideline No.6 prescribed that the basis
of delimitation shall be 2011 census.

5. Prior to the notification dated 15-09-2015, the
Raichur Zilla Panchayat, in the year 2010, a year before
2011 census, consisted of 35 seats and in terms of the
notification dated 15-09-2015 the seats were increased
from 35 to 38 pursuant to delimitation notification. The
aforesaid delimitation in the year 2015 was on the basis
of 211 census.

6. The issue in the present petition is with regard
to subsequent delimitation notification impugned
herein. The impugned notification alters the number of
seats that is existing in Raichur Zilla Panchayat from 38
to 42. It is this act that is called in question by the
petitioners. Writ Petition Nos. 13944 of 2011 and 1302
of 2021 concern delimitation notification of Raichur
Zilla Panchayat and Writ Petition Nos. 9538 of 2021



16
concerns the delimitation notification of a Taluk
Panchayat - Chikkanayakanahalli Taluk Panchayat.
W.P.No.12616/2021 concerns Chikkaballapur Zilla
Panchayat. Therefore, the petitions now filed are
questioning delimitation notification of Raichur Zilla
Panchayat, Chikkaballapur Zilla Panchayath and
Chikkanayakanahalli Taluk Panchayat.

7. Heard Sri.Jayakumar.S.Patil, Senior Advocate
along Sri.A.Mahammed Tahir, learned counsel
appearing for petitioners in W.P.No.13944/2021 and
W.P.No.13902/2021, Sri.Manmohan.P.N., learned
counsel appearing for petitioners in W.P.No.9538/2021
and 12616/2021, Sri.Nithyananda.K.R., learned High
Court Government Pleader appearing for State and
Sri.K.N.Phanindra, learned Senior Advocate along with
Smt.Vaishali Hegde, learned counsel appearing for
Election Commission.




17
8. The learned Senior Counsel Sri Jayakumar
S.Patil appearing for the petitioners would contend the
following:

(a) That in terms of Article 243 of the Constitution
of India which deals with definition and
‘population’ as defined in Article 243(f) which
clearly indicates that the population as
ascertained at the last preceding census.

(b) That Article 243C deals with composition of
panchayats and refers to population of each
constituency. Therefore, population would
mean in terms of what is declared in the last
preceding census.


(c) Section 160 of the Karnataka Gram Swaraj
and Panchayat Raj Act, 1993 (‘the Act’ for
short) refers to elected members and ratio of
one member qua the population. Section 161
which deals with determination of elected
members after census and upon publication
of figures of each census the number of
elected members of Zilla Panchayat on the
basis of population is to be determined.
Section 162 deals with reservation of seats in
the Zilla Panchayat.”

The learned Senior Counsel would submit that the act
of de-limitation by the Election Commission is without
jurisdiction as it is mandated under the statute that is



18
shall be on the basis of census. Admittedly, no census
having taken place in the years 2020-2021 and on the
basis of last preceding census the Election Commission
had already undertaken the exercise of delimitation in
the year 2015 the present Act without a fresh census
becomes an act without jurisdiction is the emphatic
submission of the learned Senior Counsel for the
petitioners.

9. The learned counsel Sri P.N. Manmohan,
appearing for the petitioners in the connected writ
petitions would toe the line of submissions in so far as
they concern Zilla Panchayat and in so far as it
concerns Taluk Panchayat would submit that Section
121 of the Act which deals with elected members and
Section 122 which deals with determination of elected
members after each census would mean that a process
of delimitation to be undertaken only after census
figures are in place. It is his submission again that the



19
entire act of the Election Commission is without
jurisdiction.

10. On the other hand, the learned Senior Counsel
nd
Sri.K.N.Phanindra representing the 2
respondent/Election Commission has filed elaborate
statement of objections, would submit –
(i) that the action of delimitation cannot be
questioned in the writ petition and the
writ petition itself is not maintainable.

(ii) that the process of delimitation had to
come about in the light of amendment to
Sections 160 and 121 of the Act in so
far as it concerns Zilla Panchayat and
Taluk Panchayat by amendment
brought about in the year 2016 to the
said provision.

(iii) that the Election Commission has not
taken any other figure other than what
is notified as census in the year 2011.
The variation in number of seats is a
result of the said amendment to the
provisions of law.

(iv) that effort of the petitioners in all these
cases is to scuttle the process of
election.



20
11. I have given my anxious consideration to the
aforesaid rival submissions made by the respective
learned senior counsel and the learned counsel
appearing for the petitioners and in furtherance thereof
the points that arise for my consideration are:
(i) Whether the writ petition questioning the
process of delimitation by the Election
Commission is maintainable?

(ii) Whether the impugned delimitation
notification issued by the Election
Commission is valid in law?


12. Point No .(i): Whether the writ petition
questioning the process of delimitation by the Election
Commission is maintainable?

The contention of the learned counsel appearing
for the Election Commission is that the writ petition
calling in question the process of delimitation is not



21
maintainable in terms of the bar under Article 243-O of
the Constitution of India. Article 243-O reads as follows:

“ 243-O. Bar to interference by
courts in electoral matters.-
Notwithstanding anything in this
Constitution,—
(a) the validity of any law relating to
the delimitation of constituencies
or the allotment of seats to such
constituencies, made or purporting
to be made under article 243K,
shall not be called in question in
any court;
(b) no election to any Panchayat shall
be called in question except by an
election petition presented to such
authority and in such manner as
is provided for by or under any
law made by the Legislature of a
State.”
Article 243-O bars interference by Courts in electoral
matters when a validity of any law relating to the
delimitation of any constituency or allotment of seats to
such constituency made under Article 243K not to be
questioned in any Court of law.




22
13. I decline to accept this submission in the light
of the interpretation of the Article by the Apex Court in
two of its judgments –in the case of BHARATI REDDY
1
VS. STATE OF KARNATAKA and in the case of STATE
OF GOA AND ANOTHER VS. FOUZIYA IMTIAZ SHAIKH
2
AND ANOTHER . The Apex Court in the case of
Bharati Reddy ( supra ) has held as follows:

1

(2018) 12 SCC 61
2

2021 SCC OnLine SC 211




23
243-K, shall not be called in question in any
court;
(b) No election to any Panchayat shall
be called in question except by an election
petition presented to such authority and in
such manner as is provided for by or under
any law made by the legislature of a State.”

8. A bare reading of clause (b) of Article
243-O would show that election to any
panchayat cannot be called in question except
by an election petition presented to such
authority and in such manner as is provided
for by or under any law made by the
legislature of a State.
xx xx xx xx
13. It is thus clear that power of
judicial review under Articles 226/227 of
the Constitution is an essential feature
of the Constitution which can neither be
tinkered with nor eroded. Even the
Constitution cannot be amended to erode
the basic structure of the Constitution.
Therefore, it cannot be said that the writ
petition filed by Respondents 6 to 9
under Article 226 of the Constitution is
not maintainable. However, it is left to
the discretion of the court exercising the
power under Articles 226/227 to
entertain the writ petition.
(Emphasis supplied)



24

and the Apex Court in the case of State of Goa
( supra ) while summing up its conclusions
considering the manifold facets of elections has
held as follows:
“65. A conspectus of the aforesaid
judgments in the context of municipal
elections would yield the following results.
I. Under Article 243 ZG(b), no election to
any municipality can be called in question
except by an election petition presented to a
Tribunal as is provided by or under any law
made by the Legislature of a State. This
would mean that from the date of notification
of the election till the date of the declaration of
result a judicial hands-off is mandated by the
non-obstante clause contained in Article
243ZG debarring the writ court under Articles
226 and 227 from interfering once the election
process has begun until it is over. The
constitutional bar operates only during this
period. It is therefore a matter of discretion
exercisable by a writ court as to whether an



25
interference is called for when the electoral
process is “imminent” i.e, the notification for
elections is yet to be announced.
II. If, however, the assistance of a writ
court is required in subserving the progress of
the election and facilitating its completion, the
writ court may issue orders provided that the
election process, once begun, cannot be
postponed or protracted in any manner.
III. The non-obstante clause contained
in Article 243ZG does not operate as a bar
after the election tribunal decides an election
dispute before it. Thus, the jurisdiction of the
High Courts under Articles 226 and 227 and
that of the Supreme Court under Article 136 of
the Constitution of India is not affected as the
non-obstante clause in Article 243ZG operates
only during the process of election.
IV. Under Article 243ZA(1), the SEC is in
overall charge of the superintendence,
direction and control of the preparation of
electoral rolls, and the conduct of all
municipal elections. If there is a constitutional
or statutory infraction by any authority



26
including the State Government either before
or during the election process, the SEC by
virtue of its power under Article 243ZA(1) can
set right such infraction. For this purpose, it
can direct the State Government or other
authority to follow the Constitution or
legislative enactment or direct such authority
to correct an order which infracts the
constitutional or statutory mandate. For this
purpose, it can also approach a writ court to
issue necessary directions in this behalf. It is
entirely uptothe SEC to set the election
process in motion or, in cases where a
constitutional or statutory provision is not
followed or infracted, to postpone the election
process until such illegal action is remedied.
This the SEC will do taking into account the
constitutional mandate of holding elections
before the term of a municipality or municipal
council is over. In extraordinary cases, the
SEC may conduct elections after such term is
over, only for good reason.
V. Judicial review of a State Election
Commission's order is available on grounds of
review of administrative orders. Here again,



27
the writ court must adopt a hands-off policy
while the election process is on and interfere
either before the process commences or after
such process is completed unless interfering
with such order subserves and facilitates the
progress of the election.
VI. Article 243ZA(2) makes it clear that
the law made by the legislature of a State,
making provision with respect to matters
relating to or in connection with elections to
municipalities, is subject to the provisions of
the Constitution, and in particular Article
243T, which deals with reservation of seats.
VII. The bar contained in Article
243ZG(a) mandates that there be a
judicial hands-off of the writ court or
any court in questioning the validity of
any law relating to delimitation of
constituency or allotment of seats to
such constituency made or purporting to
be made under Article 243ZA. This is by
virtue of the non-obstante clause
contained in Article 243ZG. The
statutory provisions dealing with



28
delimitation and allotment of seats
cannot therefore be questioned in any
court. However, orders made under such
statutory provisions can be questioned in
courts provided the concerned statute
does not give such orders the status of a
statutory provision.
VIII. Any challenge to orders
relating to delimitation or allotment of
seats including preparation of electoral
rolls, not being part of the election
process as delineated above, can also be
challenged in the manner provided by
the statutory provisions dealing with
delimitation of constituencies and
allotment of seats to such constituencies.
IX. The constitutional bar of Article
243ZG(a) applies only to courts and not the
State Election Commission, which is to
supervise, direct and control preparation of
electoral rolls and conduct elections to
municipalities.
X. The result of this position is that it is
the duty of the SEC to countermand illegal



29
orders made by any authority including the
State Government which delimit
constituencies or allot seats to such
constituencies, as is provided in proposition
(IV) above. This may be done by the SEC
either before or during the electoral process,
bearing in mind its constitutional duty as
delineated in the said proposition.”
(Emphasis supplied)
The Apex Court in the said case was considering
elections to Municipal Councils. The Apex Court clearly
holds that any challenge to the order relating to
delimitation or allotment of seats including preparation
of electoral rolls not being part of election process can
also be challenged in the manner provided by the
statutory provisions dealing with delimitation and
allotment of seats to such constituencies. The only bar
is against commencement, subsistence and conclusion
of elections, commencement to mean issuance of
calendar of events. It is also to be noticed that the
Apex Court in the case of Bharathi Reddy in effect holds



30
that Article 243- O of the Constitution of India cannot
control Article 226 of the Constitution of India, but
holds the entertainment of petitions to be discretionary.
Exercising such discretion and on the submissions of
the respective counsel, I proceed to consider the issue
on its merit.

14. Point No.(ii) : Whether the impugned
delimitation notification issued by the Election
Commission is valid in law?

Before embarking upon a journey of consideration
of the kernel of this conundrum , I deem it appropriate
to notice the position and the provisions of law
concerning the issue.

15. Part-IX of the Constitution of India deals with
‘Panchayats’. Article 243 reads as follows:-

“243. Definitions.- In this Part, unless the
context otherwise requires,—



31
(a) “district” means a district in a State;
(b) “Gram Sabha” means a body consisting
of persons registered in the electoral
rolls relating to a village comprised
within the area of Panchayat at the
village level;
(c) “intermediate level” means a level
between the village and district levels
specified by the Governor of a State by
public notification to be the intermediate
level for the purposes of this Part;
(d) “Panchayat” means an institution
(by whatever name called) of self-
government constituted under
article 243B, for the rural areas;
(e) “Panchayat area” means the territorial
area of a Panchayat;
(f) “population” means the population
as ascertained at the last preceding
census of which the relevant figures
have been published;
(g) “village” means a village specified by
the Governor by public notification to be
a village for the purposes of this Part
and includes a group of villages so
specified.”
(emphasis supplied)
In terms of Article 243(f), ‘population’ means the
population as ascertained at the last preceding census



32
of which the relevant figures have been published.
Therefore the last preceding census in the State of
Karnataka was of the year 2011. It is an admitted fact
that there is no census conducted in the years 2020-
2021. Article 243(d) defines ‘panchayat’ to mean an
institution constituted under Article 243B for rural
areas . Therefore, Part-IX which deals with panchayats
is primarily concerning rural areas.
16. Article 243C deals with composition of
Panchayats and reads as follows:

“ 243C. Composition of
Panchayats.- (1) Subject to the provisions of
this Part, the Legislature of a State may, by
law, make provisions with respect to the
composition of Panchayats:
Provided that the ratio between the
population of the territorial area of a
Panchayat at any level and the number of
seats in such Panchayat to be filled by
election shall, so far as practicable, be the
same throughout the State.
(2) All the seats in a Panchayat shall be
filled by persons chosen by direct election



33
from territorial constituencies in the
Panchayat area and, for this purpose, each
Panchayat area shall be divided into
territorial constituencies in such manner
that the ratio between the population of
each constituency and the number of
seats allotted to it shall, so far as
practicable, be the same throughout the
Panchayat area .
(3) The Legislature of a State may, by law,
provide for the representation—
(a) of the Chairpersons of the Panchayats
at the village level, in the Panchayats at the
intermediate level or, in the case of a State
not having Panchayats at the intermediate
level, in the Panchayats at the district level;
(b) of the Chairpersons of the Panchayats
at the intermediate level, in the Panchayats
at the district level;
(c) of the members of the House of the
People and the members of the Legislative
Assembly of the State representing
constituencies which comprise wholly or
partly a Panchayat area at a level other
than the village level, in such Panchayat;
(d) of the members of the Council of States
and the members of the Legislative Council
of the State, where they are registered as
electors within—
(i) a Panchayat area at the intermediate
level, in Panchayat at the intermediate level;



34
(ii) a Panchayat area at the district level,
in Panchayat at the district level.
(4) The Chairperson of a Panchayat and
other members of a Panchayat whether or
not chosen by direct election from territorial
constituencies in the Panchayat area shall
have the right to vote in the meetings of the
Panchayats.
(5) The Chairperson of—
(a) a panchayat at the village level shall
be elected in such manner as the Legislature
of a State may, by law, provide; and
(b) a Panchayat at the intermediate level
or district level shall be elected by, and from
amongst, the elected members thereof.”
(Emphasis supplied)

Article 243C (2) deals that seats in a panchayat shall be
filled by direct election in such manner with the ratio
between the population of each constituency and the
number of seats allotted to it shall, so far as practicable,
be the same throughout the panchayat area. Article
243K deals with elections to panchayats and reads as
follows:



35

36
Power of conducting all elections to the Panchayats, in
terms of Article 243K, vest with the State Election
Commission. The Scheme of the Constitution insofar as
Elections to Panchayats, power of the Election
Commission is as aforesaid.

17. The statute that falls for consideration in the
case at hand, is the Karnataka Gram Swaraj and
Panchayat Raj Act, 1993 (hereinafter referred to as the
‘Act’ short). Certain provisions of the Act which are
germane with regard to Zilla Panchayat and Taluk
Panchayat are as follows:

Zilla Panchayat :

The Act defines ‘Polulation’ and reads as follows:

“2. Definitions.- xx xx xx

(29) “Population” means the population
as ascertained at the last preceding census
of which the relevant figures have been
published;”



37
In terms of the said definition ‘Population’ would mean,
the Population as ascertained in the last preceding
census which has been published.

18. Chapter X of the Act deals with constitution of
Zilla Panchayat. Section 160 deals with elected
members of the Zilla Panchayat and reads as follows:-

“ 160. Elected members. - The elected
members of the Zilla Panchayat shall consist
of not less than twenty persons elected from
the Taluks in the District, the number of
members to be elected from each Taluk
being fixed by the State Election
Commission in accordance with the scale
of one member for every population
between thirty five thousand and forty-
five thousand:

Provided that in case of,-

(i) Uttara Kannada and
Chickmagalur district it shall be
one member for every thirty
thousand or part thereof of the
population;

(ii) Bangalore Urban district, it shall
be one member for every twenty
thousand or part thereof of the
population;



38

(iii) Kodagu district, it shall be one
member for every eighteen
thousand or part thereof of the
population.”

(emphasis supplied)
In terms of Section 160 elected members of Zilla
Panchayat shall consist of not less than 20 persons
elected from taluks in the District in accordance with
the scale of one member for every population between
35,000 and 45,000. Section 160 is amended by Act 44
of 2015 with effect from 25-02-2016 in insertion of the
words every population between 35,000 and 45,000 as
against 40,000 earlier existing. Section 161 deals with
determination of elected members after census and
reads as follows:

“161. Determination of elected
members after census. - Upon the
publication of the figures of each census,
the number of elected members of a Zilla
Panchayat shall be determined by the
State Election Commission on the basis
of the population of the district as
ascertained at that census:



39

Provided that the determination of the
number as aforesaid shall not affect the then
composition of the Zilla Panchayat until the
expiry of the term of office of the elected
members then in office.”

In terms of Section 161 upon publication of figures of
each census, the number of elected members in a Zilla
Panchayat shall be determined on the basis of
population ascertained at that census. The proviso
depicts or directs that determination of number as
aforesaid shall not affect composition of Zilla Panchayat
until the term of office of elected members then in office.
The purport of the proviso is that during the tenure if
the process of delimitation is undertaken by the
Election Commission, the same would not come into
effect till the term of the said Zilla Panchayat expires.
Section 163 empowers the Election Commission to
undertake an exercise of delimitation. Section 163 of the
Act reads as follows:




40
“ 163. Delimitation of territorial
constituencies .- The State Election
Commission shall, by notification,-

(a) divide the area within the
jurisdiction of every Zilla Panchayat, for the
purpose of election to such Zilla Panchayat
into as many signal member territorial
constituencies as the number of members
required to be elected under section 160;

(b) determine the extent of each
territorial constituency which shall be a Taluk
or part of a Taluk ;

Provided that the area comprised in a
constituency of a Zilla Panchayat determined
under section 124, shall not be divided while
determining the extent of each territorial
constituency.

(c) determine the territorial
constituency or constituencies in which seats
are reserved for the persons belonging to the
Scheduled Castes, Scheduled Tribes,
Backward Classes and for Women.”

(Emphasis supplied)

In terms of Section 163(a) the Election Commission may
divide the area within the jurisdiction of every Zilla
Panchayat for the purpose of election into many single
member territorial constituencies required to be elected



41
under Section 160. Therefore, Sections 160, 161 and
163 are to be intertwined for the purpose of
consideration of the issue brought up in the lis .

Taluk Panchayat :

19. Section 121 of the Act deals with elected
members of the Taluk Panchayat and reads as follows:

“121. Elected members .- The number
of elected members of a Taluk Panchayat
shall consist of persons elected from the
territorial constituencies in the Taluk as
may be notified from time to time by the
State Election Commission at the rate of
one member for every population between
twelve thousand five hundred and fifteen
thousand or part thereof, of the Taluk:

Provided that in Taluks having a
population of not exceeding one lakh, there
shall be a minimum of eleven elected
members.”
(emphasis supplied)
In terms of Section 121 the number of elected members
of a Taluk Panchayat shall consist of persons elected
from the territorial constituencies in the Taluk as may
be notified from time to time by the Election



42
Commission and at the rate of one member for every
population between 12500 and 15000. The words
12500 to 15000 come about by way of an amendment
on 25-02-2016 substituting the earlier figure of 10000.
Section 122 deals with determination of elected
members after each census and reads as follows:
“ 122. Determination of elected
members after each census .- Upon the
publication of the figures of each census, the
number of elected members of a Taluk
Panchayat shall be determined by the State
Election Commission on the basis of the
population of the Taluk as ascertained at that
census:

Provided that the determination of the
number as aforesaid shall not affect the then
composition of the Taluk Panchayat until the
expiry of the term of office of the elected
members then in office.”

Section 122 is identical to Section 161 where census is
the basis for determination of elected members of the
Panchayat. It is on the bedrock of the aforesaid Articles
of the Constitution of India and the provisions of the
Act, the case at hand requires consideration.



43

Raichur Zilla Panchayat :

20. The Election Commission issued a notification
on 15-09-2015 on the basis of census of the year 2011
delimiting Raichur Zilla Panchayat and increasing seats
from 35 to 38. Therefore, on the basis of census a
process of de-limitation did take place at the hands of
the Election Commission. The notification also contains
guidelines for delimiting boundaries of Zilla Panchayat
in terms of Section 163 ( supra ). Clause 6 of the
Guidelines made the 2011 census to be the basis for
undertaking an exercise of delimiting the boundaries of
the Zilla Panchayat. In the process of delimitation
undertaken in terms of the notification dated 15-09-
2015 the Election Commission issues another
notification on 31-10-2015 determining boundaries for
the purpose of conduct of elections.




44
21. Two developments take place after issuance of
the said notification. One being, the amendment to
Section 160 with effect from 25.02.2016, with regard to
insertion of one member for every population between
35,000 and 45,000 as against 40,000 that was existing
earlier and the other being that two constituencies
Lingasugur and Devadurga, which were part of Zilla
Panchayat in the year 2016 upgraded to municipalities.
Therefore, the population of these two constituencies is
to be deleted from the total population of the rural area
as Article 243 deals with ‘panchayats’ and ‘panchayats’
to mean rural areas. Comparative details of 2016
Raichur Zilla Panchayat in juxta position to 2021
Raichur Zilla Panchayat after removal of two
constituencies which became urban by upgradation to
be municipalities, are as follows:

45

Panchayat area after such upgradation is as follows:

This development read with Section 160 of the Act
empowering the Election Commission to fix number of



46
members to be elected from each Taluk on the basis of
population ranging between 35000 and 45000,the
impugned notification cannot be held to be illegal, the
reason being the alteration in terms of afore-extracted
chart. In the year 2016 Raichur Zilla Panchayat
population was 1389361 and Zilla Panchayat seats on
the basis of population were fixed at 38. If the
population of 31308 gets upgraded to municipalities
belonging to Lingasugur and Devadurga, the 2021
Raichur Zilla Panchayat gets a reduced population of
1358053. The Election Commission has taken one
member for every population of 35000 and as the
statute mandates that it could be taken between 35000
and 45000, the Election Commission has uniformly
applied 35000 population for one member of the Zilla
Panchayat and a plain arithmetic for 1358053 is divided
by 35000 the result would be 42 seats.





47
Chikkanaikanahalli Taluk Panchayat :
22. Insofar as the impugned notification
concerning Taluk Panchayat, Section 121 of the Act
(supra) leaves none in doubt, as Section 121 clearly
mandates that number of elected members of a Taluk
Panchayat shall consists of persons elected from
territorial constituencies in the Taluk as may be notified
by the Election Commission from time to time.
Therefore, the section itself depicts a condition that it is
subject to territorial constituencies as may be notified
by the Election Commission from time to time. On the
basis of census report of 2011 the rural population of
Chikkanaikanahalli Taluk was 1,88,901 and in terms of
Section 121 of the Act as it existed prior to amendment
in the year 2015 19 seats were allotted to
Chikkanaikanahalli Taluk. After the 2015 Huliyur
Grama Panchayat which was a part of
Chikkanaikanahalli Taluk Panchayat with population of
15,413 is subsequently upgraded by the Government as



48
an Urban Local Body Town Panchayat. Therefore, the
population of Huliyur Gram Panchayat is excluded from
the rural population of Chikkanaikanahalli Taluk which
has resulted in reduction in rural population of
Chikkanaikanahalli Taluk. The earlier population as
stated was 1,88,901 in terms of 2011 census. In view of
upgradation of Huliyur Panchayat population of 15,413
is reduced from Chikkanaikanahalli. The present
population figures are as follows:.
“1,88,901 (earlier rural population)
- 15,413 (upgraded as urban population)
1,73,488 (present total rural population).”

Therefore, the population of Chikkanaikanahalli is now
1,73,488 and in view of the amendment to Section 121
of the Act, the Election Commission has taken 12,500
population for one seat and has divided 1,73,488
population by 12,500 for one seat which clearly comes
to 14 seats as is now earmarked for Chikkanaikanahalli



49
reducing it from 19 that existed in 2015. The reduction
by the Election Commission in the impugned
notification cannot be termed to be illegal and it is
because of such upgradation the reduction has taken
place. The action of the Election Commission can
neither be held to be arbitrary or illegal and even
contrary to the Act. As indicated in the case of Taluk
Panchayat, the basis for such alteration is the census of
2011 in terms of amendment to Section 121 of the Act
with effect from 25.02.2016. No fault can be found in
the action of the Election Commission and no right of
the petitioners is taken away by the impugned action.

Chikkaballapur Zilla Panchayat :

23. It is the same principle that has been applied
even to Chikkaballapur Zilla Panchayat which has
resulted in increase of seats from 28 to 31 and
consequently, the number of Zilla Panchayat



50
constituencies within Chikkaballapur taluk has
increased from 4 to 5. The justification of the Election
Commission that this was necessitated by carrying out
the exercise of delimitation for the purposes of fixing
territorial boundaries of five new constituencies by
breaking up the four existing constituencies deserves
acceptance, as it is a result of operation of the statute
i.e., Section 160 of the Act. The reasons indicated
while considering Raichur Zilla Panchayat supra, would
become applicable to the consideration of
Chikkaballapur Zilla Panchayat as well.


24. Therefore, it is the afore said explanation of
the Election Commission that sounds acceptance in
contra-distinction to what is contended by the
petitioners as the action of the Election Commission in
effecting delimitation by the impugned notification is on
the basis of the very census of 2011. Therefore, there is
no violence caused to the provisions of law as is



51
contended by the learned senior counsel appearing for
the petitioners. If in the afore-extracted peculiar facts
the Election Commission had not undertaken the
exercise as it has done, it would render the amendment
to Sections 160 and 121 with effect from 25-02-2016,
otiose.

25. The contention of the petitioners could have
been accepted if the Election Commission had taken the
basis of population for such determination other than
what was determined in the census of 2011. In my
considered view on a conjoint reading of Sections 160,
161, 163, 121 and 122 of the Act the action impugned
of the Election Commission cannot be found fault with.
In fact, the constitutional and the statutory object
cannot be effectively achieved unless the delimitation
exercise of this kind is undertaken by the Election
Commission.





52
26. To both Zilla Panchayat and Taluk Panchayat,
the only rider is in terms of the proviso appended to
Sections 161 and 122 which bar the Election
Commission to bring into force the delimitation till the
term of office of elected members would get completed.
In all these cases at hand, the term of office of elected
members of either Zilla Panchayat or Taluk Panchayat
has indisputably come to an end. Therefore, the bar in
the proviso to the Election Commission ceases to
operate once the term is over and the Election
Commission is empowered to bring in a delimitation
notification for the ensuing elections in accordance with
law.

27. The submission of the learned senior counsel
or the learned counsel for the petitioners is that if a
statute prescribes a particular mode of performing the
act under the statute, it shall be done only by that way
and not in any other manner. There can be no qualm



53
with regard to this principle of law. It would have been
acceptable if the Election Commission had departed
from the 2011 census and recorded its own finding of
population figures. The Election Commission has not
deviated from the census of 2011 for the petitioners to
contend that the act of the Election Commission is in
violation of either Section 161 or Section 122 of the Act
as the case would be. Therefore, this principle of law as
contended is inapplicable to the facts of the case at
hand.


28. In view of the preceding analysis, I decline to
accede to the contentions of the petitioners that the
case warrants a judicial hands on and declare a
judicial hands off, not on maintainability, but on the
merit of the matter.






54
29. For the aforesaid reasons, the Writ Petitions
lack merit and are accordingly dismissed.

In view of dismissal of the petitions, all pending
applications also stand dismissed.



Sd/-
UDGE
J



bkp
CT:MJ