Smt Leelavathi vs. The State Of Karnataka

1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
th
DATED THIS THE 9 DAY OF AUGUST, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.31722/2018(LB-ELE)
C/W
W.P.Nos. 32294/2018(LB-ELE), 32779-32780/2018(LB-RES),
32890/2018 (LB-RES) AND 33436/2018(LB-ELE)


IN WP NO.31722/2018

BETWEEN:

P. UMESH,
S/O K.PUTTAPPA,
AGED ABOUT 48 YEARS,
ST
RESIDING AT 1 CROSS,
GANDHI BAZAAR EAST,
SHIMOGA DISTRICT-577201.
... PETITIONER

(BY SRI RAVI H. K., ADVOCATE)

AND:

1. STATE OF KARNATAKA,
DEPARTMENT OF URBAN DEVELOPMENT,
BY ITS SECRETARY,
VIDHANA SOUDHA,
BENGALURU-560001.

2. STATE ELECTION COMMISSION,
KARNATAKA STATE COOPERATIVE MARKETING
FEDERATION BUILDING,
CUNNINGHAM ROAD,
BENGALURU-560001.
REPRESENTED BY ITS COMMISSIONER.




2
3. THE DEPUTY COMMISSIONER,
MAHAVEER CIRCLE,
SHIMOGA DISTRICT-577201.

4. THE CITY CORPORATION
SHIMOGA,
SHIMOGA DISTRICT-577201,
REPRESENTED BY ITS COMMISSIONER.
... RESPONDENTS

(BY SRI UDAY HOLLA, ADVOCATE GENERAL ALONG WITH
SMT. PRATHIMA HONNAPURA AGA FOR R1 AND R3;
SRI K.N. PHANEENDRA, ADVOCATE FOR R2;
SRI H.R. SHOWRI, ADVOCATE FOR R4)

*
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DATED 19.07.2018 ISSUED BY RESPONDENT
NO.1 VIDE ANNEXURE-D IN SO FAR AS FIXING THE
RESERVATION TO THE POST OF CORPORATOR OF GANDHI
BAZAAR EAST, BEARING WARD NO.23 TO GENERAL WOMEN
CATEGORY;


IN WP NO.32294/2018

BETWEEN:

SRI M. ANWARJI,
AGED 74 YEARS,
S/O LATE MOHIDEEN SHARIEF,
EX-COUNCILOR, MYSORE CITY CORPORATION
R/O NO.6, THRIVENI CIRCLE,
KYATHAMARANAHALLI LAYOUT,
MYSORE-570011.
... PETITIONER
(BY SRI M. KRISHNAPPA, ADVOCATE)

AND:

1. STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT,
URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA, DR. AMBEDKAR ROAD,
BANGALORE-560001.

3
2. MYSORE CITY CORPORATION
NEW SAYYAJIRAO ROAD,
MYSORE-570004.
REP. BY COMMISSIONER,
... RESPONDENTS

(BY SRI UDAY HOLLA, ADVOCATE GENERAL ALONG WITH
SMT. PRATHIMA HONNAPURA AGA FOR R1;
VIDE ORDER DATED 30.07.2018 R2 IS DELETED)

*

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTIFICATION DATED 19.7.2018 ISSUED BY
RESPONDENT NO.1 AS PER ANNEXURE-B, IN SO FAR IT
RELATES TO SEAT RESERVED FOR WARD NO.32 "GHOUSIA
NAGAR "A" BLOCK USMANIA WARD NO.32" OF THE MYSORE
CITY CORPORATION RESPONDENT-2.


IN WP Nos.32779-32780/2018

BETWEEN:

1. SRI.H.JAYARAM,
S/O HONNAIAH
AGED ABOUT 40 YEARS
ND
R/AT E-30 2 CROSS, E & F BLOCK,
SBM COLONY, NEAR CHURCH,
RAMAKRISHNA NAGAR,
MYSORE – 570022.

2. SRI H. S. JAISHANKAR
S/O LATE SHAMBU LINGAPPA,
AGED ABOUT 34 YEARS
R/AT D. NO.198,
SEWAGE FORUM ROAD,
HUDCO HOUSE,
V
IDYARANYAPURAM
MYSORE – 570008.
... PETITIONERS

(BY SRI MANMOHAN P. N., ADVOCATE)



4

AND:

1. STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
M. S. BUILDING
BANGALORE - 560001
REPRESENTED BY ITS
PRINCIPAL SECRETARY,

2. THE STATE ELECTION COMMISSION,
PARK HOUSE,
CUBBON PARK,
BANGALORE – 560001,
REPRESENTED BY ITS COMMISSIONER

3. MYSORE CITY CORPORATION
MYSORE - 570001
REPRESENTED BY ITS COMMISSIONER,

4. THE DEPUTY COMMISSIONER
MYSORE – 570001.
... RESPONDENTS

(BY SRI UDAY HOLLA, ADVOCATE GENERAL ALONG WITH
SMT. PRATHIMA HONNAPURA AGA FOR R1 AND R4;
SRI K. N. PHANEENDRA, ADVOCATE FOR R2;
SMT. M.P. GEETHA DEVI, ADVOCATE FOR R3)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTIFICATION DATED 19.07.2018 ISSUED BY
RESPONDENT NO.1 (PRODUCED AT ANNEXURE-E).

IN WP NO.32890/2018

BETWEEN:

SRI. LOKESHA @ LOKESHA M. K.
AGED 42 YEARS,
S/O LATE M.K.KALEGOWDA,
ND
R/O NO.530, 2 STAGE,
WARD NO.14, SATHYANAGAR,
UDAYAGIRI, MYSORE-570019.
MYSORE DISTRICT. ... PETITIONER

(BY SRI M. KRISHNAPPA, ADVOCATE)

5
AND:

1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT,
URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA, DR. AMBEDKAR ROAD,
BANGALORE-560 001.

2. THE DEPUTY COMMISSIONER,
MYSORE DISTRICT,
MYSORE-570 005.
... RESPONDENTS

(BY SRI UDAY HOLLA, ADVOCATE GENERAL ALONG WITH
SMT. PRATHIMA HONNAPURA AGA FOR R1 AND R2)


THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTIFICATION DATED 19.7.2018 ISSUED BY
RESPONDENT NO.1 AS PER ANNEXURE-C, IN SO FAR AS IT
RELATES THE SEAT RESERVED FOR WARD NO.14-SATHYA
NAGAR OF THE MYSORE CITY CORPORATION, MYSORE;


IN WP NO.33436/2018

BETWEEN:

SMT. LEELAVATHI,
AGED ABOUT 49 YEARS,
D/O SRINIVAS NAIDU
TH
R/AT NO.222, 12 CROSS,
ST
1 MAIN, ARAVIND NAGARA,
MYSORE - 570 023. ... PETITIONER

(BY SRI V. R. SARATHY, ADVOCATE )

AND:

1. THE STATE OF KARNATAKA
REPRESENTED BY THE SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIKAS SOUDHA
BANGALORE - 560 001.


6
2. THE KARNATAKA STATE ELECTION COMMISSION
REP BY ITS ELECTION COMMISSIONER
OPPOSITE OF K.S.M.F.BUILDING
ST
NO.8, 1 FLOOR, CUNNINGHAM ROAD
BANGALORE - 560 052.

3. THE DEPUTY COMMISSIONER
MYSORE DISTRICT
MYSORE - 570 001.

4. THE MYSORE CITY CORPORATION
REP BY ITS COMMISSIONER
MYSORE - 570 001. ... RESPONDENTS

(BY SRI UDAY HOLLA, ADVOCATE GENERAL ALONG WITH
SMT. PRATHIMA HONNAPURA AGA FOR R1 AND R3;
SRI K. N. PHANEENDRA, ADVOCATE FOR R2;
SMT. M.P. GEETHA DEVI, ADVOCATE FOR R4)
…

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTIFIATION ANNEXURE-A DATED 19.7.2018
ISSUED BY THE RESPONDENT NO.1 AS ILLEGAL.

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

ORDER

All these writ petitions are filed by the petitioners
challenging the notification dated 19.7.2018 issued by
st
the 1 respondent/State Government insofar it relates
to reservation of seats in respect of Mysuru and
Shivamogga Municipal Corporation Wards.


7
I-FACTS OF THE CASES

2. The petitioners are claiming that they are
eligible to contest to the elections for general, BCA, BCB
and SC have filed the present writ petitions contending
that the State Government issued draft notification on
19.06.2018 in respect of reservations under the
provisions of Section 7 (2), (3), and (4) of the Karnataka
Municipal Corporations Act, 1976 (for short, hereinafter
referred to as ‘Act’), reserving seats wardwise for 65
different wards for Mysuru City Corporation on the
basis of population as per 2011 census calling for
objections, if any, from the general public which shall
be filed within seven days from the date of publication.
Ghousianagar A Block Usmania Ward No.32 (Old Ward
No.59) has been reserved for General category.
Therefore, the petitioner - M Anwarji in
W.P.No.32294/2018 did not file any objections since it
was in accordance with law. But when the final
notification was issued on 19.07.2018 reserving the said
ward for General Woman category, it was contrary to

8
draft notification. It is further contended that Ward
No.32 was continuously and repeatedly reserved for
General Woman for last three elections i.e., 2007, 2013
and 2018 and the same is contrary to the roster policy.
It is further contended that unless cycle of 10 categories
is exhausted, there was no justification for repetition of
any category permanently and granting of seven days
time to file objections is also contrary to the dictum of
this Court and the Hon’ble Supreme Court time and
again.

3. The learned Counsel for the petitioner in Writ
Petition No.31722/2018 contended that, petitioner
belongs to BCA category and he is concerned with
th
Gandhi Bazar East, Ward No.23 of 4 respondent-
Corporation. The City Municipal Council, Shivamogga
was upgraded/converted to City Corporation,
Shivamogga by the Government Order dated 20.12.2013
as per Annexure-B and it is further contended that for
the year 2001, Ward No.23 was reserved for General
Woman for the year 2007, BCA for the year 2013 and

9
General Women for the year 2018. It was further
contended that the respondent No.1 had earlier reserved
said post for General Category. However, after thought,
for extraneous consideration, respondent No.1 re-fixed
reservation to General Women category depriving the
opportunity to the petitioner and similarly situated
persons from contesting the reservation made and the
same is contrary to the Government Notification issued
from time to time.

4. The petitioners in Writ Petition Nos. 32779-
80/2018 are from BCB and SC in respect of Ward
rd
Nos.55 and 65 of the 3 respondent-Corporation have
contended that in respect of Ward No.55 for year 2008,
General Category was reserved and again for the year
2013 it was repeated for General and so also for the
year 2018 as General. In respect of Ward No.65, it was
reserved for General for the years 2008 and 2013 and
BCA for the year 2018. Therefore, the learned Counsel
for the petitioners contended that inspite of
objections filed pointing out that the notification issued

10
is in violation of the provisions of Section 7 of the Act
and that the ward reservation policy has not been
st
implemented, the 1 respondent without considering
the objection filed by the petitioners has issued final
notification on 19.7.2018 reserving seats in respect of
65 Wards of the Corporation. Therefore, they are before
this Court.

5. The petitioner in Writ Petition No.33436/2018
belongs to BCB category, Mysuru. It is stated that
Ward No.64 was earlier reserved for BCA Women for the
year 2001, General for the years 2008, 2013, and 2018.
Though in the draft notification, it was notified as
general, but in the Final Notification, it was reserved for
BCA Women. Therefore, he contended that the Ward
Reservation Policy is without any basis and without
following the provisions of Article 243T of Constitution
of India r/w Section 7 of the Act.

6. The learned Counsel for the petitioner in Writ
Petition No. 32980/2018 contended that Ward No.14,

11
Sathyanagara, Mysuru, for the year 2001, was reserved
for BCA category, Scheduled Caste for the years 2007
and 2013 and BCA Women for the year 2018.

7. Therefore, all the writ petitions are filed to
quash the impugned final notification dated 19.07.2018
mainly on the ground that the respondents have not
followed the rotation policy.

8. I have heard the learned counsel for the parties
to the lis.
II-ARGUMENTS ADVANCED BY THE LEARNED COUNSEL
FOR THE PARTIES

9. Sri M. Krishnappa, learned counsel for
petitioners in Writ Petition Nos. 32294/2018 and
32890/2018 contended that the continuous reservation
for the category General Women for the years 2007,
2013 and 2018 in respect of Ward No. 59,
Ghousianagar, Mysuru City Corporation; Ward No.14,
Sathyanagar, Mysuru City Corporation for the BCA
Woman in year 2001, SC in the years 2007 and 2013

12
and BCA Woman for the year 2018 is contrary to the
roster policy. He would further contend that as per
Government Order dated 07.05.2007 guideline Nos.12
and 13 are applicable to petitioners i.e., the principles of
rotation in respect of other categories shall ensure that
there is no repetition of reservation of seats with
reference to reservation in the previous terms. The seat
allotted to Schedule Caste, Scheduled Tribe, Backward
Classes A or B or Women in the previous term shall not
be allotted to the same category in the succeeding term.
A seat reserved for Women in previous term shall not be
reserved for Women in any category in the succeeding
term. Inspite of the said guidelines issued by the State
Government in pursuance of the order passed by this
Court in Writ Petition No. 5886/2007 and connected
matters, still the respondents have reserved the seats
for General Women continuously for three terms which
is against the roster policy. He would further contend
that in view of Article 243T of the Constitution of India,
reservation of seats shall be made strictly in accordance

13
with law and provisions of Section 7(4) of the Act, but
the same has not been done. Therefore, he would
contend that repetition of the reservation for General
Women continuously for three terms is contrary to the
very roster policy. Therefore, he sought to quash the
impugned notification issued by the State Government.

10. In support of his contentions, the learned
counsel relied upon unreported judgment of this Court
in the case of:

i) Sri G. Sangappa vs. State of Karnataka
D.D. 25.11.2010 especially para 20, 25,
26 and 27; and

ii) also the Division Bench of this Hon'ble
Court in the case of A Ramdas and Others
–vs- State of Karnataka reported in ILR
2001 KAR 5354 para 6, 7, 10, 12, 14, 16,
20, 21. Therefore he sought to allow writ
petitions for the relief sought for.

11. Sri H.K. Ravi, learned Counsel appearing for
one of the petitioners in respect of Shivamogga

14
contended that objections filed in respect of Ward No.23
was not at all considered. He further contended that
fixation of roster is against the roster policy. In support
of his contentions he relied upon judgment of the
Hon’ble Supreme Court in the case of Baldev singh and
Others vs. State of Himachal Pradesh and Others
reported in 1987 SC 1239 with regard to notified area,
prior opportunity of hearing of residents of the locality
must be afforded.

12. Sri P.N.Manmohan, learned counsel appearing
for some of the petitioners in respect of Ward No.55 and
65 of Mysuru City Corporation contended that the very
reservation made is in utter violation of Article 243T of
the Constitution of India and proviso to Sub-Section 4
of Section 7 of the Act. He would further contend that
the State Government has not followed the procedure as
contemplated under the Government Order dated
02.02.2015 with regard to reservation and hence, the
same is contrary to the dictum of this Court and the

15
Hon’ble Supreme Court. In support of his contentions,
he relied upon the following judgments:

i) Prashant Bansilal Bamb –vs- State of
Maharashtra reported in (2007) 4
Maharashra Law Journal 341 para 19;


ii) State of Orissa and Others –vs- Md. Illiyas
reported in (2006) 1 SCC 275 ;

iii) M. Abdul Azeez –vs- The State of
Karnataka, by its Secretary, Urban
Development Department and Others
reported in ILR 2014 KAR 1839 para 11
with regard to rotation;

13. Sri V.R. Sarathy, learned Counsel for the
petitioner in respect of Ward No.64, Mysuru while
adopting the arguments of the learned Counsel for the
petitioners sought to allow the writ petitions for the
relief sought for.

14. Per contra, Sri Udaya Holla, learned Advocate
General for the State Government contended that earlier
the Shivamogga City Municipal Council was upgraded

16
to the Municipal Corporation, Shivamogga in the year
2013 and in view of the census of the year 2011, fresh
reservation had to be applied. Therefore, the
contentions of the learned counsel for petitioners with
regard to Shivamogga Ward that it is in violation of
roster policy cannot be accepted. He would further
contend that Sub-section (26-A) of Section 2 of the
Karnataka Municipal Corporations Act, 1976, which
refers to ‘Population’ which means the population as
ascertained at the last preceding census of which
relevant figures have been published. The impugned
notification for reservation is issued on the basis of
2011 census and admittedly in the absence of any Rules
under the Act for reservation, the respondents have
invoked the provisions of Article 243T of Constitution of
India and the provisions of the Sections 7(2), (3), (4) of
the Act based on 2011 census. Admittedly the said
notification is not at all challenged and in so far as the
elections conducted for Mysuru Corporation for the
years 2007 and 2013 on the basis of census for the year

17
2001 and reservation made under the impugned
notifications to conduct elections under the 2011
census. He would further contend that the judgment
relied upon by learned Counsel Sri Krishnappa in Writ
Petition No.36337/2010 has been set aside by the
Division Bench of this Court in the case of Karnataka
State Election Commission, Bangalore –vs- G. Sangappa
and Others reported in (2011)1 AIR Kar. R 820 (DB) and
in view of the dictum of the Division Bench stated
supra, the petitioners are not entitled to any relief.

15. The learned Advocate General would further
contend that the Division Bench of this Court while
considering the provisions of Karnataka Panchayath Raj
Act has held that the starting point has to be taken
when delimitation is carried out after the culmination of
census operations. Therefore, he would contend that
the contention of the petitioners that the
reservation was made to a particular category for the
years 2001, 2007 and 2013 cannot be accepted for
the simple reason that the elections conducted for the

18
years 2007 and 2013 were on the basis of 2001 census
and in sofaras Shivamogga City Municipal Council that
the City Municipal Council, Shivamogga was upgraded
as Municipal Corporation and the notification was
issued on the basis of 2011 census, the starting point
for both the elections under the impugned notification is
on the basis of 2011 census. Therefore, the reservation
has to be made afresh and sought to dismiss the writ
petitions.

16. Per contra, Sri K.N.Phaneendra, learned
counsel for the State Election Commission, while
supporting arguments of learned Advocate General
contended that the Calendar of Events is issued on
02.08.2018 and therefore, the petitioners are not
entitled to any relief before this Court in exercise of
powers under Articles 226 and 227 of Constitution of
India and sought for dismissal of writ petitions.




19
III-POINT FOR DETERMINATION

17. In view of the aforesaid contentions of the
learned counsel for the parties, the only point that
arises for consideration is:

Whether petitioners are entitled to the relief
as sought for under Articles 226 and 227
of Constitution of India in view of the
constitutional mandate as contemplated
under Article 243U of the Constitution of
India in the facts and circumstances of the
case?
IV-CONSIDERATION

18. I have given my anxious consideration to the
arguments advanced by the learned counsel for the
parties and perused the entire material on record
carefully.

19. It is the specific case of petitioners in all these
writ petitions that the reservation in some of the wards
was repeated for last three years continuously and
thereby deprived the reservation to other categories

20
which is in violation of the provisions of Section 7 (2), (3)
and (4) of Act and Article 243T of the Constitution of
India. The substance of the respondent/State that the
earlier City Municipal Council, Shivamogga was
upgraded as Municipal Corporation in the year 2013
and the present impugned notifications for reservation
are issued on 19.6.2017 and 19.7.2017 based on 2011
census and the reservation has to be applied for the
first time. Therefore, the contentions of the petitioners
cannot be accepted.

20. The material on record clearly depicts that
some of the petitioners relying upon the Government
Order with regard to guidelines for rotation of
reservation of seats dated 7.5.2007 that the
Government Orders were issued in pursuance of the
order passed by this Court in Writ Petition
No.5886/2007 on the basis of the population figures of
census of the year 2001 and some of the petitioners
relied upon the Government Order dated 02.02.2015
made on the basis of 2011 census. It is also not in

21
dispute that insofar as the Shivamogga Corporation that
earlier it was Town Municipal Council and in the year
2013 it was upgraded to Municipal Corporation and
therefore, fresh reservation has to be applied and earlier
roster relied upon by the learned Counsel for the
petitioners in respect of Shivamogga cannot be
accepted.


21. In so far as the contentions raised by the
petitioners in respect of Mysuru, being two writ
petitions filed, one petitioner relied upon 7.5.2011
Government Order 2.2.2015 for reservation of rotation,
Sub Section (26-A) of Section 2 of the Act prescribes
that the definition of ‘Population’ means, population as
ascertained at the last preceding census of which
relevant figures are published.


22. Admittedly, in the present cases, the last
preceding census was conducted in the year 2011. As
per Article 243P Sub-clause (g) of the Constitution of

22
India ‘Population’ means population ascertained at the
‘last preceding census of which relevant figures have
been published. Therefore, the elections of Municipal
Corporations and reservation made thereon have to be
done as per the preceding census of which relevant
figures have been published. Admittedly, the
notification is issued for delimitation and reservation of
seats made by the State Government on the basis of the
2011 census. Therefore, the elections for the
Corporations have to be conducted on that basis alone.

23. In view of the above, it is relevant to consider
the provisions of Section 7 of the Karnataka Municipal
Corporations Act, 1976 which reads as under:

“7. Constitution of the Corporation.—
(1) The Corporation shall consist of,-

(a) such number of elected councillors
not being less than thirty and not
more than Two hundred as the
Government, may by notification
determine; and

23

(b) not exceeding ten percent of the total
number of councilors in the case of
Bruhat Bengaluru Mahanagara
Palike and not more than five
persons in the case of other city
corporations nominated by the
Government from amongst the
residents of the city,-

(i) who are persons having special
knowledge and experience in
municipal administration or
matters relating to health, town
planning or education; or

(ii) who are social workers;

(c) the members of the Houses of People
and the members of the State
Legislative Assembly representing a
part or whole of the city whose
constituencies lie within the city.

(d) the members of the Council of State
and State Legislative Council who
are registered as electors within the
city:

24

Provided that the persons referred to in
clause (b) shall not have right to vote in
the meetings of the Corporation.

(2) Seats shall be reserved in a
corporation,-

(a) for the Scheduled Castes; and
(b) for the Scheduled Tribes:

and the number of seats so
reserved shall bear as nearly as
may be, the same proportion to the
total number of seats to be filled by
direct election in the corporation as
the population of the Scheduled
Castes in the city or of the
Scheduled Tribes in the city bears
to the total population of the city.

(3) Such number of seats which shall as
nearly as may be, one third of the
total number of seats to be filled by
direct election in a corporation shall
be reserved for persons belonging
to the Backward Classes;


25
Provided that out of the seats
reserved under this sub-section, eighty
percent of the total number of such
seats shall be reserved for the persons
falling under category "A" and the
remaining twenty percent of the seats
shall be reserved for the persons falling
under category "B":

Provided further that if no person
falling under category "A" is available,
the seats reserved for that category
shall also be filled by the persons falling
under category "B" and vice-versa.

Provided also that the number of
seats so reserved for the Backward
Classes under this sub-section shall be
so determined, that the total number of
seats reserved for the Scheduled Castes
and Schedule Tribes under sub-Section
(2) and the Backward Classes under
this sub-section shall not exceed fifty
percent of the total number of seats in
the City Corporation.


26
Explanation.--For the purpose of this
sub-section and provisio to clause(b) of
sub-section (1A) of section 10,
categories "A" and "B" shall mean
categories "A" and "B" referred to in
clause (1) of section 2.

(4) Not more than fifty percent of the
seats reserved for each category of
persons belonging to Scheduled
Castes, Scheduled Tribes and
Backward Classes and those of the
non-reserved seats to be filled by
direct election in a corporation shall
be reserved for women:

Provided that the seats reserved
in sub-sections (2), (3) and (4) shall be
allotted by rotation to different wards in
a city.

(5) The Councillors referred to in clause
(a) of sub-sections (1) shall be
elected in the manner provided in
this Act.

(6) Nothing contained in sub-sections (2),
(3) and (4) shall be deemed to

27
prevent the members of the
Scheduled Castes, Scheduled Tribes,
Backward Classes or Women from
standing for election to the non-
reserved seats.”

24. A plain reading of the said provisions make it
clear that the Corporation shall consist of (a) such
number of elected councilors not being less than thirty
and not more than two hundred as the Government
may, by notification determine; and (b) not exceeding
ten percent of the total number of Councillors in the
case of Bruhat Bengaluru Mahanagara Palike and not
more than five persons in case of other City
Corporations nominated by the Government from
amongst the residents of the city who are persons
having special knowledge and experience in municipal
administration or matters relating to health, town
planning or education or who are social workers. (c)
The members of the House of People and the members
of the State Legislative Assembly representing a part or
whole of the City whose constituencies lie within the

28
city. (d) the members of the Council of State and State
Legislative Council who are registered as electors within
the city ; Provided that the persons referred to in clause
(b) of Section 7 shall not have right to vote in the
meetings of the Corporation.

Sub-section (2) of Section 7 of the Act prescribes
that the seats shall be reserved in a Corporation for the
Scheduled Castes and for the Scheduled Tribes and the
number of seats so reserved shall be as nearly as may
be, the same proportion to the total number of seats to
be filled by direct election in the Corporation as the
population of the Scheduled Castes in the city or of the
Scheduled Tribes in the city bears to the total
population of the city.

Sub-section (3) of Section 7 of the Act prescribes
that such number of seats which shall as nearly as may
be, one third of the total number of seats to be filled by
direct election in a Corporation shall be reserved for
persons belonging to the Backward classes; Provided

29
that out of the seats reserved under this sub-section,
eighty percent of the total number of such seats shall be
reserved for the persons falling under category ‘A’ and
the remaining twenty percent of the seats shall be
reserved for the persons falling under category B ;
Provided further that if no person falling under category
‘A’ is available, the seats reserved for the category shall
also be filled by the persons falling under Category ‘B”
and vice versa ; Provided also that the number of seats
so reserved for the Backward classes under this sub-
section shall be so determined, that the total number of
seats reserved for scheduled castes and scheduled
tribes under sub section (2) and the backward classes
under sub section (3) shall not exceed fifty percent of
total number of seats in the city corporations.

The explanation to Section 7 of the Act prescribes
that for the purpose of the said section and proviso to
clause (b) of sub section (1A) of section 10, categories ‘A’
and ‘B’ shall mean categories A and B referred to in
clause (1) of Section 2 of the Act.

30

Clause (4) of section 7 of the Act prescribes that
not more than fifty percent of the seats reserved for
each category of persons belonging to Scheduled Castes,
Scheduled Tribes and Backward classes and those of
the non reserved seats to be filled by direct election in a
Corporation shall be reserved for women; Provided that
the seats reserved in sub section (2), (3) and (4) shall be
allotted by rotation to the different wards in a city.

Sub-section (5) of Section 7 prescribes that the
councilors referred to clause (a) of Sub-section (1) shall
be elected in the manner provided in the Act. Sub-
Section (6) of Section 7 prescribes that nothing
contained in Sub-sections (2), (3) and (4) shall be
deemed to prevent the members of the scheduled
castes, scheduled tribes, backward classes or women
from standing for election to non reserved seats.

25. Section 8 of the Act deals with term of office of
the councilors which reads as under:


31
“8. Term of office of Councillors.- (1)
Save as otherwise provided in this Act,
the term of office of councillors,-

(i) directly elected at a general
election shall be five years;

(ii)nominated by the
Government under clause (b)
of sub-section (1) of section 7
shall, subject to the pleasure
of the Government, be five
years.

(2) The term of office of the councillors
shall commence on the date appointed
for the first meeting of the corporation.

(3) Notwithstanding anything contained
in this Act, where two thirds of the total
number of councillors required to be
elected have been elected, the
Corporation shall be deemed to have
been duly constituted under this Act.

(4) If any casual vacancy occurs it shall
be filled, as soon as may be, by the
election of a person thereto. The person

32
so elected shall hold office only so long
as the person in whose place he is
elected would have held had the
vacancy not occurred:

Provided that no election to fill a
casual vacancy shall be held if the
vacancy occurs within four months
before the expiry by efflux of time of the
term of office of the councillors.

(5) A councillor may resign his office at
any time by notice in writing addressed
to the Mayor and delivered to him and
such resignation shall take effect from
the date on which it is delivered.”

26. A plain reading of the said provision makes it
clear that the term of the office of the councilors directly
elected at a general election shall be five years and the
term of office of the Councillors nominated by the
Government under Clause (b) of Sub-section (1) of
Section 7 shall, subject to the pleasure of the
Government, be five years. Sub-section (2) of Section 8
prescribes that the term of office of councilors shall

33
commence on the date appointed for the first meeting of
the Corporation. Sub-section (3) of Section 8 prescribes
that notwithstanding anything contained in the Act,
where two-thirds of the total number of councilors
required to be elected have been elected, the
Corporation shall be deemed to have been duly
constituted under the Act. Sub-section (4) of Section 8
prescribes that if any casual vacancy occurs it shall be
filled, as soon as may be, by the election of a person
thereto. The person so elected shall hold office only so
long as person in whose place he is elected would have
held had the vacancy not occurred ; Provided that no
election to fill casual vacancy shall be held if vacancy
occurs within four months before the expiry by efflux of
time of the term of office of the councilors.

Sub-section (5) of Section 8 of the Act prescribes
that a councilor may resign his office at any time by
notice in writing addressed to the Mayor and delivered
to him and such resignation shall take effect from the
date on which it is delivered.

34

27. With a view to provide for setting up
democratic institutions at the grass-root level by virtue
of Seventy-fourth Amendment to the Constitution, Part
IX-A providing for establishment of the Municipalities
was incorporated in the Constitution w.e.f 1.6.1993.
The object of introducing Part IX-A in the Constitution
of India was that in many States the local bodies were
not working properly and the timely elections were not
being held and the nominated bodies were continuing
for long periods. Election had been irregular and many
times unnecessarily delayed or postponed and the
elected bodies had been superseded or suspended
without adequate justification at the whims and fancies
of the State authorities. The new provisions i.e., Articles
243P to 243ZG were added in the Constitution of India
with a view to restore the rightful place in political
governance for local bodies. It was considered
necessary to provide a constitutional status to such
bodies and to ensure regular and fair conduct of
election.

35
28. If holding of election is allowed to be stalled
on the complaint of few individuals/petitioners, then
grave injustice will be done to lakhs of other voters, who
have a right to elect a representative to the local body.
The Court should not intervene when the elections are
imminent. A careful reading of the notification issued
by the Government on 19.06.2018 exercising powers
under the provisions of Section 7(2), (3), (4) of the Act,
reserving seats for different wards both at Mysuru City
Corporation and Shivamogga Corporations on the basis
of population as per 2011 census figures calling
objections from the general public and final notification
came to be issued on 19.07.2018 invoking the same
provisions, but the fact remains that the present
notification issued for reservation of seats in various
wards is based on 2011 census. Therefore, fresh
reservation of seats has to be applied. In view of the
provisions of Sub-section (26A) of Section 2 of the KMC
Act, which refers to ‘Population’ means population as
ascertained at the last preceding census of which

36
relevant figures have been published and the same is
also envisaged under Article 243P(g) of the Constitution
of India, the ‘Population’ means the population as
ascertained at the last preceding census of which
relevant figures have been published.

29. Admittedly, in the present case, inspite of
repeated the orders/observations made by this Court
earlier, the State Governments have not raised an
occasion to make the Rules for reservation of various
Wards in respect of elections to be conducted for the
local bodies even though the Karnataka Municipalities
Act came into effect in 1964 and Karnataka Municipal
Corporations Act, 1976 and we are in the year 2018, for
all these years, that is more than four decades, the
successive State Governments have adopted the policy
of issuing notification/Government Order for
reservation of guidelines continuously thereby to say
goodbye to the very roster policy or reservation of seats
as contemplated under Article 243T of the Constitution
of India. It is high time for the State Government to

37
frame rules with regard to reservation of seats in respect
of election of local bodies/Municipalities/Corporations
elections and to curb the menace of adoption of issuing
Government guidelines by passing a Government
Orders under Article 162 of the Constitution of India
according to their own sweet whims and fancies which
is impermissible. It is also unfortunate that, whenever,
elections are contemplated either for the
Municipalities/Municipal Corporations/local bodies,
only few individuals, who approach this Court, raise
hue and cry. There is no consistent efforts to
implement the reservation policy which clearly indicates
that both the Election Commissioner, State Government
and the general public, who approach the Court at the
time of issuing notifications i.e., either delimitation or
reservation, they are not approaching the Court within
time and everybody approach the Court only at the fag
end of the day unnecessarily pressurizing the Courts by
filing petitions/litigations thereby everybody try to

38
abuse the process of the Court. On that ground also,
the petitioners are not entitled to any relief.

30. It is not in dispute that Article 243P(g) defines
‘population’ to mean the population as ascertained at
the last preceding census of which the relevant figures
have been published. The Hon’ble Supreme Court while
considering the provisions of Articles 243P(g) and 243T
of the Constitution of India in the case of ANUGRAH
NARAIN SINGH cited supra held at Paragraph-33 as under:
“33. In our view, the argument
advanced on behalf of the State must be
upheld. It is true that Article 243-P(g)
has defined ‘population’ to mean
“population as ascertained by the last
preceding census of which the relevant
figures have been published”. The
delimitation of constituencies and also
preparation of electoral rolls will have to
be done on the basis of the figures
available from the last census which
was taken in 1991. Reservation of seats
for Scheduled Castes and Scheduled

39
Tribes is mandatory under Article 243-T
of the Constitution. This must also be
done on the basis of the available
figures from the census. Clause (6) of
Article 243-T of the Constitution has
made it permissible for the State
Government to reserve seats for other
Backward Classes. The census of 1991
has not enumerated the number of
persons belonging to Backward
Classes. Therefore, in order to reserve
seats for citizens belonging to
Backward Classes, their number will
have to be found out. Clause (6) of
Article 243-T has impliedly empowered
the State Government to ascertain the
Backward Classes and the number of
people belonging to such classes.
Otherwise, the provisions of clause (6)
of Article 243-T will become otiose and
meaningless. Merely because, such an
enumeration of people belonging to
Backward Classes was made, does not
mean that the figures enumerated by
the last census were discarded. The
latest available census figures had to be
the basis for delimitation of the

40
constituencies, preparation of electoral
rolls and also for reservation of seats for
Scheduled Castes, Scheduled Tribes
and women. But census figures are not
available for persons belonging to
Backward Classes. The next census
will be in the year 2001. There is no
way to reserve seats for Backward
Classes in the meantime except by
making a survey of the number of
persons belonging to such classes for
the purpose of giving them assured
representation in the municipal bodies.
To do this exercise is not to do away
with the last available census figures
but to find out what was not to be found
by the last census. Had such counting
been done in the census, then it would
not have been open to the State
Government to embark upon a survey of
its own. The State Government here had
only two choices. It could say that there
will be no reservation for people
belonging to Backward Classes
because, the census figures of such
people are not available or it could
make a survey and count the number of

41
people belonging to the Backward
Classes and reserve seats for them in
the municipal bodies. The State
Government has taken the latter course.
This is in consonance with the
provisions of clause (6) of Article 243-T.
Therefore, the survey made by the State
Government for finding out the number
of persons belonging to Backward
Classes was not in any way contrary to
or in conflict with any of the provisions
of the Constitution.”

31. Admittedly in the present case, learned
Counsel for the petitioners relied upon two Government
Orders/guidelines for rotation of reservation of seats
among different categories in various Wards of Urban
Local Bodies/the City Corporations/Town Municipal
Council and Town Panchayath elections:

i) The Government Order dated 07.05.2007 made
in UDD 82 MLR 2007

ii) The Government Order dated 02.02.2015
bearing No. NAE 240 MLR 2013

42

32. In view of the above two Government Orders
relied upon by the learned Counsel for the petitioners,
the latest Government Order has to be applied to follow
the guidelines for reservation, since the impugned
notifications issued for reservation of seats are based on
2011 census.

33. When the second Government Order is issued
to follow the guidelines for reservation, second
Government Order is repugnant in any way to the first
Government Order. Therefore, the second Government
Orders must prevail for it stands last in the notification
and speaks the last intention of the makers or the
Government, in view of the dictum of the Privy Council
in the case of The King vs. Dominion Engineering Co. Ltd.
reported in AIR(93)1947 Privy Council 94 wherein para-7
reads as hereunder:

“7. Proviso 2 qualifies the main
enactment in the matter of delivery no
less than does proviso 1 and it also

43
qualifies proviso 1 itself. For it provides
"further" that "in any case where there
is no physical delivery of the goods," the
tax is to be payable when the property
in the goods passes to the purchaser.
Thus where there is no physical
delivery the notional delivery which
proviso 1 introduces is rendered
inapplicable. Anger J. found in proviso 2
an alternative ground for his decision
against the Crown and it is the main
ground of Hudson J.'s judgment in the
Supreme Court. In their Lordships' view
this proviso presents an insuperable
obstacle to the Crown's claim. There has
been no physical delivery of the goods
by the Dominion Company to the Pulp
Company, The proviso enacts that "in
any case" where there has been no
physical delivery the tax is to be
payable when the property passes. The
property in the goods in question has
never passed to the Pulp Company,
Consequently the tax has never become
payable. If proviso 2 is repugnant in
any way to proviso 1 it must prevail for
it stands last in the enactment and so to

44
quote Lord Tenterden C. J., "speaks the
last intention of the makers" ((1831), 2
B. and Ad. 8181 at p. 821). The last
word is with the respondent, the
Dominion Company, and must prevail”.


34. The judgment relied upon by Sri. M.
Krishnappa, learned Counsel appearing for some of the
petitioners in the case of A. Ramdas and Others –vs-
State of Karnataka, Department of Urban Development
and Others reported in ILR 2001 Kar. 5354 was a public
interest challenging Rotation of categories of
Reservations. Ultimately the said notifications were
withdrawn by the Government in view of the concession
made by the learned Advocate General. The facts of the
said case are entirely different from the facts of the
present case and hence has no application to the
present case. In so far as the other judgments relied
upon in the case of G. Sangappa –vs- State of
Karnataka made in Writ Petition No.36337/2010 and
th
connected matters D.D. 25 November, 2010, the order

45
passed by the learned Single Judge has been set aside
by the Division Bench of this Court in the case of
Karnataka State Election Commission, Bangalore –vs- G.
Sangappa & Others reported in 2011(1) AIR Kar 820 .

35. The other case relied upon by Sri M.
Krishnappa, learned Counsel for the petitioner is Obajji
Basavarajappa and Another –vs- State of Karnataka and
Others in Writ Petition No.5308/2007 and connected
th
matters D.D.16 April, 2007 wherein it was a case
where non implementation of the Municipal Election
Rules was also disposed of in view of the concession
made by the then learned Advocate General that the
previous reservation to the Wards would be taken into
consideration so as to ensure that there is no repetition
in the reservation to the very same Ward which exercise
by the State would take less than 9 weeks. Therefore,
this case has no application to the facts and
circumstances of the present case.


46
36. As already stated supra, admittedly, for the
election of City Corporations, inspite of repeated orders
passed by this Court and Constitutional Mandate of
Article 243T of the Constitution of India, till today, the
State Governments have not framed any Rules
regarding reservation of seats even after a lapse of 40
years.

37. The judgment relied upon by Sri P.N.
Manmohan, learned Counsel appearing for the
petitioner in the case of Prashant Bansilal Bamb –vs-
State of Maharashtra reported in 2007(4) Mh.L.J 341
where a writ of mandamus was sought before the
Maharashtra High Court to direct the respondents to
follow rotation policy for the general elections to
Panchayats in the State of Maharashtra in compliance
with the Maharashtra Zilla Parishad and Panchayat
Samitis (Manner and Rotation of Reservation of Seats)
Rules, 1996 wherein the Maharashtra High Court
allowed the petition and directed to implement the

47
Rules which was framed exercising the powers conferred
under Article 243-K of the Constitution of India. The
said case has no application to the facts and
circumstances of the present case.


38. So also the case relied upon by the learned
Counsel for the petitioners in the case of M. Abdul Azeez
–vs- The State of Karnataka, by its Secretary, Urban
Development Department and Others reported in ILR
2014 Kar. 1839 for allotting offices of Chairpersons and
Vice Chairpersons to the various reserved categories in
the Municipal Corporations, City Municipal Councils,
Town Municipal Councils and Town Panchayats on the
ground that the notifications issued are in violation of
the principle of violation, has no application to the facts
and circumstances of the present case.

39. It is an undisputed fact that every
Corporation shall have a lifespan of five years and if
dissolved earlier, fresh elections will have to be held

48
within the time specified in clause (3) of Article 243U of
the Constitution of India, which reads as under:

“243U. Duration of Municipalities, etc :-

(1) Every Municipality, unless sooner
dissolved under any law for the time
being in force, shall continue for five
years from the date appointed for its
first meeting and no longer: Provided
that a Municipality shall be given a
reasonable opportunity of being heard
before its dissolution

(2) No amendment of any law for the
time being in force shall have the effect
of causing dissolution of a Municipality
at any level, which is functioning
immediately before such amendment,
till the expiration of its duration
specified in clause(1)

(3) An election to Constitute a
Municipality shall be completed,

(a) before the expiry of its duration
specified in clause ( 1 );


49
(b)before the expiration of a period
of six months from the date of
its dissolution:

Provided that where the remainder of
the period for which the dissolved
Municipality would have continued is
less than six months, it shall not be
necessary to hold any election under
this clause for constituting the
Municipality for such period.

(4) A Municipality constituted upon the
dissolution of a Municipality before the
expiration of its duration shall continue
only for the remainder of the period for
which the dissolved Municipality would
have continued under, clause(1) had it
not been so dissolved.”
40. It is an undisputed fact that in view of
provisions of section 21(1) and (2) and 35(1)(d)(iv) of the
KMC Act and Articles 243ZA, 243ZG and 243U of the
Constitution of India, the delimitation of wards and
reservation of wards were made on the basis of latest

50
census 2011 figures. The alleged violation of population
of wards stated in terms of statute would not in any way
affect the petitioners and ultimately it is for the
petitioners to file election petitions before the
appropriate Court/Election Tribunal. On that ground
also writ petitions are liable to be dismissed.
41. It is also not in dispute that the duration of
Municipalities is fixed as five years and it is mandatory
in nature and any violation cannot be justified in view of
Article 243U of Constitution of India. The Hon’ble
Supreme Court while considering the provisions of
Articles 243K, 243ZA, 324, 243E, 243U, 32 and 226 of
the Constitution of India in the case of Kishansing
Tomar –vs- Municipal Corporation of the City of
Ahmedabad reported in (2006)8 SCC 352 held at
paragraphs 19, 20, 21 and 22 as under:
19. From the opinion thus expressed by
this Court, it is clear that the State
Election Commission shall not put
forward any excuse based on

51
unreasonable grounds that the election
could not be completed in time. The
Election Commission shall try to
complete the election before the
expiration of the duration of five years'
period as stipulated in clause (5). Any
revision of electoral rolls shall be carried
out in time and if it cannot be carried
out within a reasonable time, the
election has to be conducted on the
basis of the then existing electoral rolls.
In other words, the Election Commission
shall complete the election before the
expiration of the duration of five years'
period as stipulated in clause (5) and
not yield to situations that may be
created by vested interests to postpone
elections from being held within the
stipulated time.
20. The majority opinion in Lakshmi
Charan Sen v. A.K.M. Hassan Uzzaman
[(1985) 4 SCC 689] held that the fact
that certain claims and objections are
not finally disposed of while preparing
the electoral rolls or even assuming that
they are not filed in accordance with

52
law cannot arrest the process of election
to the legislature. The election has to be
held on the basis of the electoral rolls
which are in force on the last date for
making nomination. It is true that the
Election Commission shall take steps to
prepare the electoral rolls by following
due process of law, but that too, should
be done timely and in no circumstances,
it shall be delayed so as to cause gross
violation of the mandatory provisions
contained in Article 243-U of the
Constitution.
21. It is true that there may be certain
man-made calamities, such as rioting or
breakdown of law and order, or natural
calamities which could distract the
authorities from holding elections to the
municipality, but they are exceptional
circumstances and under no (sic other)
circumstance would the Election
Commission be justified in delaying the
process of election after consulting the
State Government and other authorities.
But that should be an exceptional
circumstance and shall not be a regular

53
feature to extend the duration of the
municipality. Going by the provisions
contained in Article 243-U, it is clear
that the period of five years fixed
thereunder to constitute the municipality
is mandatory in nature and has to be
followed in all respects. It is only when
the municipality is dissolved for any
other reason and the remainder of the
period for which the dissolved
municipality would have continued is
less than six months, it shall not be
necessary to hold any elections for
constituting the municipality for such
period.
22. In our opinion, the entire provision
in the Constitution was inserted to see
that there should not be any delay in
the constitution of the new municipality
every five years and in order to avoid
the mischief of delaying the process of
election and allowing the nominated
bodies to continue, the provisions have
been suitably added to the Constitution.
In this direction, it is necessary for all
the State Governments to recognise the

54
significance of the State Election
Commission, which is a constitutional
body and it shall abide by the directions
of the Commission in the same manner
in which it follows the directions of the
Election Commission of India during the
elections for Parliament and the State
Legislatures. In fact, in the domain of
elections to the panchayats and the
municipal bodies under Part IX and Part
IX-A for the conduct of the elections to
these bodies they enjoy the same status
as the Election Commission of India.

42. It is also not in dispute that the State
Government issued notifications on 28.12.2017 and
20.04.2018 for delimitation of wards based on 2011
census and draft notification on 19.06.2018 and final
notification on 19.07.2018 for reservation of seats,
exercising powers under the provisions of Section 7(2),
(3) and (4) of the Act based on 2011 census and the
election to the local bodies are imminent to be
conducted on or before 05.09.2018 as mandated under

55
Article 243U of the Constitution of India. It is also not
in dispute that the State Election Commission has
already issued Calendar of Events on 02.08.2018. It is
an admitted fact that by the impugned notifications, the
State Government notified reservation of seats to 105
Wards, out of which only six Wards are under challenge
by the petitioners. Admittedly, the elections are already
set in motion by the State Election Commission by
issuing Calendar of Events. Therefore, it is not possible
for this Court to interfere with the election process
already set in motion exercising powers under Articles
226 and 227 of the Constitution of India.

43. When the calendar of events has already been
issued as on 2.8.2018 and the elections to the
Corporations have to be conducted as per the
Constitutional Mandate on or before 5.9.2018 and once
the calendar of events is issued, this Court cannot
interfere in the election process in view of Article 243-O
of the Constitution of India, which reads as under:


56
“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.”

44. The Hon’ble Supreme Court in the case of N.P.
Ponnuswami –vs- Returning Officer, Namakkal reported
in AIR 1952 SC 64 , while considering the interference in
election matters, has held as under:

“9. The question now arises whether the
law of elections in this country
contemplates that there should be two

57
attacks on matters connected with
election proceedings, one while they are
going on by invoking the extraordinary
jurisdiction of the high Court under
Article 226 of the Constitution (the
ordinary jurisdiction of the Courts
having been expressly excluded), and
an other after they have been completed
by means of an election petition. In my
opinion, to affirm such a position would
be contrary to the scheme of Part XV of
the Constitution and the Representation
of the People Act, which as I shall point
out later, seems to be that any matter
which has the effect of vitiating an
election should be brought up only at
the appropriate stage in an appropriate
manner before a special tribunal and
should not be brought up at an
intermediate stage before any Court. It
seems to me that under the election law,
the only significance which the rejection
of a nomination paper has consists in
the fact that it can be used as a ground
to call the election in question Article
329(b) was apparently enacted to
prescribe the manner in which and the

58
stage at which this ground, and other
grounds which may be raised under the
law to call the election in question, could
be urged. I think it follows by
necessary implication from the language
of this provision that those grounds
cannot be urged in any other manner, at
any other stage and before any other
Court. If the grounds on which an
election can be called in question could
be raised at an earlier stage and errors,
if any are rectified, there will be no
meaning in enacting a provision like
Article 329(b) and in setting up a special
tribunal. Any other meaning ascribed to
the words used in the article would lead
to anomalies, which the Constitution
could not have contemplated, one of
them being that conflicting views may
be expressed by the High Court at the
pre-polling stage and by the election
tribunal, which is to be an independent
body, at the stage when the matter is
brought up before it.

12. It is now well recognized that where
a right or liability is created by a statute

59
which gives a special remedy for
enforcing it, the remedy provided by
that statute only must be availed of.
This rule was stated with great clarity
by Willies J. in Wolver Hampton New
Water Works Co. v. Hawkesford, (1859)
6 C.B. (N.S.) 336, at p.356 in the
following passage:
“There are three classes of cases
in which a liability may be
established founded upon
statute, one is, where there was
a liability existing at common
law, and that liability is affirmed
by a statute which gives a
special and peculiar form of
remedy different from the
remedy which existed at
common law; there, unless the
statute contains words which
expressly or by necessary
implication exclude the common
law remedy, the party suing has
his election to pursue either that

60
or the statutory remedy. The
second class of case is, where
the statute gives the right to sue
merely, but provided no
particular form of remedy; there,
the party can only proceed by
action at common law. But there
is a third class viz., where a
liability not existing at common
law is created by a statute
which at the same time gives a
special and particular remedy
for enforcing it. The remedy
provided by the statute must be
followed, and it is not competent
to the party to pursue the course
applicable to cases of the second
class. The form given by the
statute must be adopted and
adhered to”.

The rule laid down in this passage was
approved by the House of Lords in
Nevile v. London Express Newspaper
Ltd, (1919) A.C. 368 and has been
reaffirmed by the Privy Council in
Attorney General of Trinidad and

61
Tabago .vs Gordon Grant & Co., 1935
A.C. 532 and Secretary of State v. Mask
& Co., 44 cal. W.N. 709; and it has also
been held to be equally applicable to
enforcement of rights (see Hurduttrai v.
Off Assignee of Calcutta, 52 cal. W.N.
343, At p.349. That being so, I think it
will be a fair inference from the
provisions of the Representation of the
People Act to state that the Act provides
for only one remedy, that remedy being
by an election petition to be presented
after the election is over, and there is no
remedy provided at any intermediate
stage.

13. It was argued that since the
Representation of the People Act was
enacted subject to the provisions of the
Constitution, it cannot bar the
jurisdiction of the High Court to issue
writs under Article 226 of the
Constitution. This argument however is
completely shut out by reading the Act
alongwith Article 329(b). It will be
noticed that the language used in that
article and in S.80 of the Act is almost

62
identical, with this difference only that
the article is preceded by the words
“notwithstanding anything in this
Constitution”. I think that those words
are quite apt to exclude the jurisdiction
of the High Court to deal with any
matter which may arise while the
elections are in progress.”

45. In the case of Boddula Krishnaiah –vs- State
Election Commissioner reported in (1996)3 SCC 416, the
Hon’ble Supreme Court while considering the
interference of elections already set in motion, has held
as under:

“11. Thus, it would be clear that once
an election process has been set in
motion, though the High Court may
entertain or may have already
entertained a writ petition, it would not
be justified in interfering with the
election process giving direction to the
election officer to stall the proceedings
or to conduct the election process
afresh, in particular when election has

63
already been held in which the voters
were allegedly prevented from
exercising their franchise. As seen, that
dispute is covered by an election
dispute and remedy is thus available at
law for redressal.

12. Under these circumstances, we hold
that the order passed by the High Court
is not correct in law in giving direction
not to declare the result of the election
or to conduct fresh poll for 20 persons,
though the writ petition is maintainable.
The High Court, pending writ petition,
would not be justified in issuing
direction to stall the election process. It
is made clear that though we have held
that the respondents are not entitled to
the relief by interim order, this order
does not preclude any candidate
including defeated candidate from
canvassing the correctness of the
election. They are free, as held earlier,
to seek remedy by way of an election
petition as provided in the Act and the
Rules.”

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46. In the case of Kurapati Maria Das –vs- Dr.
Ambedkar Seva Samajan and Others reported in (2009)7
SCC 387 , the Hon’ble Supreme Court has held as
under:

“19. In the first place, it would be better
to consider as to whether the bar under
Article 243-ZG(b) is in absolute bar. The
article reads thus:

“243-ZG (b) no election to any
Municipality 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.”

“At least from the language of clause
(b), it is clear that the bar is absolute.
Normally where such a bar is expressed
in a negative language as is the case
here, it has to be held that the tone of
clause (b) is mandatory and the bar
created therein is absolute.


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20. This Court in its recent decisions
has held the bar to be absolute. First
such decision is Jaspal Singh Arora v.
State of M.P. {(1998)9 SCC 594}. In this
case the election of the petitioner as the
President of the Municipal Council was
challenged by a writ petition under
Article 226, which was allowed setting
aside the election of the petitioner. In
para 3 of this judgment, the Court
observed:

“It is clear that the election could
not be called in question except by
an election petition as provided
under that Act. The bar to
interference by courts in electoral
matters contained in Article 243-
ZG of the Constitution was
apparently overlooked by the High
Court in allowing the writ petition.
Apart from the bar under Article
243-ZG, on settled principles
interference under Article 226 of
the Constitution for the purpose of
setting aside election to a
municipality was not called for

66
because of the statutory provision
for election petition…”

21. The second such decision is
Gurudeep Singh Dhillon v. Satpal
{(2006)10 SCC 616}. In that decision,
after quoting Article 243-ZG(b) the
Court observed that the shortcut of
filing the writ petition and invoking
constitutional jurisdiction of the High
Court under Articles 226/227 was
not permissible and the only remedy
available to challenge the election
was by raising the election dispute
under the local statute.”

V - CONCLUSION

47. For the reasons stated above, the point raised
in the writ petitions has to be answered in the negative
holding that the petitioners have not made out any
prima facie case to interfere at this stage under Articles
226 and 227 of the Constitution of India, too when the
calendar of events are issued and elections are already

67
set in motion. Accordingly, writ petitions are
dismissed .

48. However, this Court ardently hope and trust
that the State Government will take necessary steps to
frame appropriate rules for reservation of seats in
respect of election of local
bodies/Municipalities/Corporations, etc., in accordance
with the provisions of Section 7(2) of the Karnataka
Municipal Corporations Act, 1976 as well as the
constitutional mandate under Article 243T of the
Constitution of India at the earliest in the interest of
general public at large.


Sd/-
Judge

Nsu/-