1. All the four writ appeals involve similar questions of fact and law, hence are heard together for common disposal.
In W.A. Nos. 1718/2007 & 1720/2007
Sri S.M. Babu has filed an application on behalf of one Sri M. Anwarji
2. These appeals pertain to the Municipal elections of Chikkaballapur City Municipality. The Election Commissioner is R-4 in both the appeals who issued notification dated 4.08.2007 for conducting elections to the local bodies including Chikkaballapur Municipality. The Government by notification dated 30.07.2007 issued notification regarding the roster pattern to be followed in the election to the various Municipalities as per Annexure-C. The calendar of events dated 04.08.2007 was stayed by this court on 7.8.2007. The Supreme Court in S.L.P. No. 14334/2007, in view of the undertaking of R-4 that elections would be held before 30.09.2007 stayed the stay order granted by this court in W.P. No. 12391/2007. The calendar of events dated 4.8.2007 virtually had became unworkable and infructuous, therefore R-4 issued calendar of events dated 4.9.2007. The date of filing of nomination commenced from 10.9.2007 and closing date for nomination is 17.9.2007. The Government issued a corrigendum at Annexure-A dated 3.9.2007 in effecting certain changes in the roster pattern for some of the wards in the various Municipalities including the elections for Chikkaballapur Municipality. Annexure-C notified Ward No. 4 as seat reserved for general (Woman) and Ward No. 23 was reserved for general category. The Government by corrigendum at Annexure-A interchanged the reservation making Ward No. 4 as general seat and Ward No. 23 as General (Woman). The corrigendum at Annexure A is made applicable for the purpose of receiving nominations. R-5 filed the writ petition challenging the corrigendum at Annexure-A dated 03.09.2007 as illegal and sought a direction that the elections to be held to Ward No. 4 and Ward No. 23 as per the roster published in Annexure-C.
3. The learned single Judge has found that the corrigendum issued at Annexure-A is arbitrary and illegal and without any reasonable basis. Hence by interim order directed that the acceptance of nominations to Ward No. 4 and Ward No. 23 shall be as per the roster noted in Annexure-C. The appellant has filed nomination to contest the election on the basis of the reservation noted in Annexure-A.
4. Sri Jayakumar S. Patil, learned Senior Counsel for R-5 in W.A. No. 1718/2007 in support of the order of the learned single Judge submitted the following arguments-
(1) The roster pattern issued in Annexure-C has been issued after public hearing and in accordance with law. The issue of corrigendum at Annexure-A by the Government changing the roster pattern is whimsical, arbitrary and illegal The corrigendum at Annexure-A is not in the nature of correction of errors but the corrigendum substantially alters the roster pattern. Annexure-A is issued in haste without following the necessary procedure of public hearing and in accordance with law, therefore the elections have to be held in accordance with Annexure-C.
(2) The prohibition in Section 13 of the Municipalities Act does not take away the jurisdiction of this court under Article 226 of the Constitution when there is arbitrary and malafide exercise of power.
(3) The scope of provisions under Article 243-ZG only deals with de-limitation and allotment of seats but does not include the reservation of seats. Hence there is no constitutional bar to enquire into the legality of the roster made in Annexure-A.
(4) The Government has not come out with any convincing explanation as to the impelling circumstances to warrant to issue corrigendum at Annexure-A. Therefore the learned single Judge was correct in holding that Annexure-A is illegal and the elections have to be held in accordance with the roster noted in Annexure-C.
5. Sri Lakshminarayan, learned Counsel appearing for R-5 in W.A. No. 1720/2007 strenuously argued that the jurisdiction of the court under Article 226 of the Constitution is not curtailed to enquire into the matter of this nature. In this regard, the learned Counsel relied on the decision of the Supreme court in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha : (2007)3SCC184 . The relevant observation at page 373 reads thus:
ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision not on grounds of lack of jurisdiction but it being nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.
6. The decision of the Supreme court in Kamala Prasad Ketan and Anr. v. Union of India : (1958)IILLJ461SC in paragraphs 15, 16 and 17 is relied on to contend that whenever the power to amend is granted, the power is exercisable in the like manner and subject to the like sanction and conditions (if any) as govern the making of the original order. The provisions of Section 21 of the General Clauses Act is also referred to contend that the Government if at all wanted to make bona fide correction/amendment to the roster pattern, the procedure of draft publication and public hearing should be necessarily followed as in the case of Annexure-C.
7. It is strenuously argued that since Annexure-A does not conform to the. legal requirements, it does not take away the jurisdiction of the court under Article 226 to annul Annexure-A and to direct the conduct of elections as per roster noted in Annexure-C.
8. Per contra Sri K.M. Natraj, learned Counsel relied on the provisions of Section 13, 21 and 23 of Karnataka Municipalities Act, 1964 which reads thus:
'Section 13. Wards for elections:
{(I) For the purpose of election of councillors to be elected to fill the seats under (Clause (a) of Sub-section (1)} of Section 11, the Government shall (xxx) by notification determine,-
(a) the number of territorial (wards) into which the (municipal area) shall be divided;
(b) the extent of each territorial (ward);
(c) the number of seats allotted to each territorial (ward) which shall be {one (xxx)} and
(d) the number of seats, if any, reserved for the (Scheduled Castes, Scheduled Tribes, Backward Classes and for Women) in each territorial (ward).
{Provided that the territorial (wards) formed shall comprise, as for as may be, of contiguous blocks}:
{(1-A) No notification under Sub-section (1) shall be called in question in any court of law};
{(2) and (3) xxxxx}
Section 21: Election petitions:
(1) No election of a councillor shall be called in question except by an election petition presented to the Election Tribunal within fifteen days from the date of the declaration of the result of the election.
(2) An election petition calling in question any such election may be presented on one or more of the grounds specified in Section 23-
(a) by any candidate at such election, or
(b) by any voter of the division concerned.
(3) A petitioner shall join as respondents to his petition all the candidates at the election.
(4) An election petition,-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall with sufficient particulars, set forth the ground or grounds on which the election is called in question; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings.
Section 23 Grounds for declaring elections to be void:
(1) Subject to the provisions of Sub-section (2), if the Election Tribunal is of opinion,-
(a) that on the date of his election a returned candidate was not qualified, or was councillor under this Act, or
(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent, or
(c) that any nomination paper has been improperly rejected, or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected,-
(i) by the improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent or by any other person acting with the consent of such candidate or agent; or
(iii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or
(iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the Election Tribunal shall declare the election of the returned candidate to be void.
(2) If in the opinion of the Election Tribunal, any agent of a returned candidate has been guilty of any corrupt practice, but the Tribunal is satisfied,-
(a) that no such corrupt practice was committed at the election by the candidate, and every such corrupt practice was committed contrary to the orders and without the consent of the candidate;
(b) that the candidate took all reasonable means for preventing the commission of corrupt practices at the election; and
(c) that in all other respects the election was tree from any corrupt practice on the part of the candidate or any of his agents.
then the Tribunal decide that the election of the returned candidate is not void.
9. Sri K.M. Natraj, learned Counsel strenuously argued that the provisions of Section 23(d)(iv) enables to challenge the election to the Municipality on the ground that the elections have been held by non-compliance with the provisions of this Act or any Rules or Orders made thereunder. It is submitted that the effective election process has commenced by the calendar of events dated 04.09.2007. The impugned corrigendum at Annexure-A is issued prior to the calendar of events. If at all there is illegality visiting Annexure-A, the remedy of the appellant is only by way of an election petition Under Section 23 and not by invoking jurisdiction under Article 226. Moreover, it is settled proposition of law that the courts abhor to interfere with the effective election process after issue of calendar of events. In support of the above proposition the counsel relied upon the Full Bench decision of this court in State of Karnataka and Anr. v. A. Nagendrappa AIR 1991 Karnataka 317. In the said decision, it is held that 'issuance of de-limitation of constituencies and allotment of seat notifications would be a stage or step which would have a direct bearing on the result of process of election. If that be so, there cannot be any impediment to conclude that non-compliance of Sub-section (5) of Section 5 in the issuance of the delimitation of constituencies notification could be a ground under Sub-clause (iv) of Clause (d) of Sub-section (1) of Section 18 for calling in question the election of a returned candidate to the Mandal Panchayat by filing an election petition under Sub-section (1) of Section 14 inasmuch as Sub-section (1)'.
10. The counsel also relied on the ruling of the Supreme Court in the case of Election Commission of India, Through Secretary v. Ashok Kumar : (2001)ILLJ601SC wherein in paragraph 28 and 29 the following observations are made:
28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over-enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
29. Section 100 of the Representation of the People Act, 1951 needs to be read with Article 329(b), the former being a product of the later. The sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329(b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 to the only provision within the scope of which an attack on the validity of the election must all so as to be a ground available for avoiding an election and depriving the successful candidate of his victory at the polls. The Constitution Bench in Mohinder Singh Gill's case AIR 1978 SC 851 (vide para 33) asks us to read Section 100 widely as 'covering the whole basket of grievances of the candidates'. Sub-clause (iv) of Clause (d) of Sub-section (1) of Section 100 is a 'residual catch-all-clause'. Whenever there has been non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or of any rules or orders made thereunder if no specifically covered by any other preceding clause or Sub-clause of the Section it shall be covered by Sub-clause (iv). The result of the election insofar as it concerns a returned candidate shall be set aside for any such noncompliance as above said subject to such noncompliance also satisfying the requirement of the result of the election having been shown to have been materially affected insofar as a returned candidate is concerned. The conclusions which inevitably follow are: in the field of election jurisprudence, ignore such things as do not materially effect has been dispensed with by the law, even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.
11 Sri A.G. Shivanna, learned Government Advocate referred to the provisions of Article 243-ZD to contend that the remedy of the writ petitioner is only by way of an election petition and that invoking of powers of this court under Article 226 after effective commencement of election process is untenable.
12 In respect of Annexure-A, the Government Advocate submitted reservation of seat to Ward No. 4 is interchanged to Ward No. 23 because of the fact that in Ward No. 23 there is a greater female population. Hence justified the action in Annexure-A as not actuated with mala fides.
13. There is no iota of doubt that the executive actions and the notifications issued by the Government are justiciable and subject to judicial review under Article 226 of the Constitution, It is a fact that the Government has issued earliest roster pattern at Annexure-C, but the corrigendum effecting certain changes in the roster pattern pertaining to some of the wards in the Municipalities in the State is issued at Annexure-A i.e., a day before issuance of calendar of events. There would have been no inhibition or impediment for this court to have gone into the legality of Annexure-A but for the reason that the effective election process is commenced by issue of calendar of events, it would not be in the judicial propriety to interfere with the election process. More so, when the writ petitioner has remedy by way of election petition. The Full Bench decision of this Court, Supreme Court cited above and the provisions of Article 243-ZG squarely applies to the facts in question. The aspirants to contest election may have underwent some sort of confusion on account of oscillating stand of the Government with regard to the reservations but nevertheless Annexure-A has been issued before the calendar of events, therefore, has to be kept in tact for the purpose of conducting of elections.
14. We do not propose to express any opinion on the legality of Annexure-A but the judicial interference in the conduct of elections is not permitted after issuance of calendar of events. Hence, we hold that the elections have to be held as per the latest roster pattern notified in Annexure-A. Any disturbance in the roster pattern during the stage of nomination would ultimately bring about irreversible difficulties and legal impediments. If at all the elections held as per Annexure-A is illegal, the writ petitioner will have the remedy by way of election petition under Section 23 of the Karnataka Municipalities Act.
15. Sri Shashi Kiran Shetty strenuously contended that the writ appeal in W.A. No. 1718/2007 is filed by the appellant without locus and he is not entitled to seek leave of the court to file the appeal since he is not contesting from Ward No. 23. The appellant has to confine himself to the relief in respect of election to Ward No. 4. Therefore the order passed by the learned single Judge in respect of ward No. 23 is valid and should bind the appellant.
16. We are afraid to accept the argument. The logic of the argument leads to inconsistent and conflicting situation when it is held that there should be no interference in the election process after the issuance of calendar of events, whatever the latest reservation pattern issued at Annexure-A shall hold the field. Annexure-A, if it is illegal or held to be illegal, the petitioner will have the remedy by way of election petition. The effect of the relief in W.A. No. 1718/2007 cannot be parochially restricted, when once it is permitted that the elections to be held as per Annexure-A as a consequence the benefit of the order would extend to all those who are similarly placed and deserve. In that view, we reject the contention of Shri Shashi Kiran Shetty to limit the effect of the relief in W.A. No. 1718/2007 to Ward No. 4 and not to extend to Ward No. 23.
Accordingly the interim order is set aside. The appeals are allowed in the terms as indicated above.
In W.A. Nos. 1726/2007 & 1727/2007
17. The appellants have filed an application seeking leave of the court to file an appeal aggrieved by the part of the interim order of the learned single Judge in W.P. No. 14345/2007. The said writ petition pertains to the elections of Gadag-Betageri Municipality. The appellants however are not the residents of Gadag-Betageri Municipality and they are the residents of Dandeli The learned single Judge in the interim order similarly like in W.P. No. 14334/2007 held that the elections are to be held according to the roster pattern noted in the notification at Annexure C dated 30.07.2007 and not as per the corrigendum at Annexure A dated 03.09.2007. The learned single Judge further directed that the roster pattern at corrigendum dated 03.09.2007 shall not be given effect to for the elections in other Municipalities, even in the absence of specific challenge in respect of other Municipalities. The appellants are the residents of different Municipalities in the State who are feeling aggrieved by the general directions issued in respect of corrigendum at Annexure A dated 03.09.2007.
18. The order of the learned single Judge that corrigendum dated 3.9.2007 shall not be given effect to in the scheduled Municipal elections even without a specific challenge to the election of each of the concerned Municipality and granting general stay to corrigendum at Annexure A dated 3.9.2007 is not proper. Hence that part of the order in W.P. No. 14345/2007 is set aside. The other part of the relief in the order in respect of election to Gadag-Betageri Municipality stands undisturbed.
19. It is directed that the hand delivery of the operative portion of the judgment to be delivered to the learned Government Advocate and the counsel for the State Election Commission.
20. Sri Jayakumar S. Patil teke. notice for R-1 in W.A. No. 1726/2007, and W.A. No. 1727/2007.
21. Sri A.G. Shivanna to file memo of appearance for respondents 1 to 3 in W.A. No. 1718 and 1720/2007 and for respondents 1, 3 and 4 in W.A. No. 1726/2007 within four weeks.