- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23D DAY OF JUNE, 2021 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.3506 OF2021(LB-RES) PIL BETWEEN:
1. SMT. MALAVIKA GUBBIVANI W/O RAGHAVENDRA UDUPA AGED ABOUT47YEARS #1568, 4TH MAIN HEBBAL2D STAGE, MYSORE - 570 017 2. SRI G.R.VIDYARANYA S/O LATE G.V.RAGHASWAMY AGED ABOUT69YEARS MIG-891, CITB2D STG. KUVEMPUNAGAR, MYSORE - 570 023 3. SRI JANARDHANA CHENNAGIRI S/O SRIDHARA MURTHY C B AGED ABOUT47YEARS1839 1ST CROSS, K BLOCK KUVEMPU NAGARA MYSORE - 570 023 ... PETITIONERS (BY SHRI UMAPATHI S, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ADDL. CHIEF SECRETARY URBAN DEVELOPMENT DEPARTMENT GOVERNMENT OF KARNATAKA VIKASA SOUDHA BANGALORE - 560 001 2. THE COMMISSIONER MYSORE CITY CORPORATION MYSORE CITY, KARNATAKA - 2 - 3. THE DIRECTOR THE DIRECTORATE OF MUNICIPAL ADMINISTRATION9H AND10H FLOOR, VV TOWER DR.B.R.AMBEDKAR VEEDHI BANGALORE - 560 001 ... RESPONDENTS (SHRI VIJAYKUMAR A.PATIL, AGA FOR RESPONDENT NOS.1 & 3 SHRI MOHAN BHAT, ADVOCATE FOR RESPONDENT NO.2) --- THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUS DIRECTING THE RESPONDENTS TO TAKE STEPS FOR THE FORMATION OF AREA SABHAS AND WARD COMMITTEES AS PER SECTION13C, 13-H OF KMC ACT READ WITH ARTICLE243S OF THE CONSTITUTION OF INDIA IN THE MYSORE CITY MUNICIPAL CORPORATIONS WITHIN THE TIME FRAME TO BE FIXED BY THIS HON'BLE HIGH COURT AND TO REPORT COMPLIANCE AND ETC. THIS PETITION COMING ON FOR FINAL DISPOSAL THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING: ORDER
The counsel for the petitioners is not present. Today, the petition is fixed for final disposal. As the issue is substantially covered by a decision of this Court dated 8th August 2019 passed in Writ Petition No.53244 of 2018 (Annexure-A), we have taken up the petition for final disposal.
2. The only prayer made is for issue of a writ in the nature of mandamus is prayer clause (a) which reads thus:
"Issue an appropriate writ in the nature of mandamus, an order or direction directing the respondents to take steps for the formation of Area Sabhas and Ward Committees as per Section 13-C, 13-H of KMC Act read with Article 243-S of the - 3 - Constitution of India in the Mysore City Municipal Corporations within the time frame to be fixed by this Hon'ble High Court and to report compliance.
3. The submission of the learned Additional Government Advocate appearing for the first and third respondents is that for determination of the areas as contemplated under clause (a) of Section 13B of the Karnataka Municipal Corporations Act, 1976 (for short, "the said Act of 1976"), a proposal must come from the "Corporation" as defined under the said Act of 1976.
4. The submission of the learned counsel appearing for the second respondent is that as far as the constitution of Ward Committees is concerned, the Commissioner has taken all steps and now, the matter is placed before the "Council". AREA SABHA5 We have given careful consideration to the submissions. Though the issue is covered by the aforesaid decision at Annexure-A, considering the nature of submissions made, it is necessary to record elaborate reasons.
6. As far as constitution of Area Sabha is concerned, the relevant provisions are in Chapter IIIA of the said Act of 1976. Under Section 13C of the said Act of 1976, there is a mandatory provision that there shall be an Area Sabha for - 4 - each area. It is necessary to reproduce the provisions of Sections 13B, 13C and 13D of the said Act of 1976 which read thus:
"13B.Determination of Areas.- The State Government shall by order determine,- (a) the areas into which each Ward may be divided; and (b) each area shall comprise the polling area of one or more contiguous polling stations in a ward, but in any case not exceeding total area of five such polling stations: Provided that polling area of any polling station shall not be divided into two or more areas. 13C. Constitution of Area Sabha.- (1) There shall be an Area Sabha for each area. (2) All persons who are registered as voters in the electoral rolls of the polling stations in an area shall be members of that Area Sabha. 13D. Representatives of Area Sabha.- (1) Each area shall have an area sabha representative who shall be nominated by the Corporation on the recommendation of the councilor of the particular ward: Provided that, if no recommendation is received within ninety days from the date of constitution or reconstitution of the Corporation, the Commissioner shall recommend names to the Corporation for nomination. (2) If councillor of any ward, for any reason ceases to be the Councillor before the expiry of the term of the Corporation, the Area Sabha Representatives of that ward shall also cease to be Area Sabha Representatives and - 5 - new Area Sabha Representatives shall be nominated in accordance with sub-section (1). (3) The Area Sabha Representative shall be a member of that Area Sabha. (4) Any person disqualified for being elected as a Councillor shall not be nominated as Area Sabha Representative."
(underlines supplied) 7. We do not agree with the submission that for constituting the areas as provided in clause (a) of Section 13B of the said Act of 1976, a proposal must come from the Corporation. It is the prerogative and mandatory obligation of the State Government to determine the areas as provided in clause (a) of Section 13B of the said Act of 1976. In the aforesaid decision at Annexure-A, it is already held that the provisions of Section 13C of the said Act of 1976 are mandatory in nature. Unless the State Government passes an order as mandated under clause (a) of Section 13B of the said Act of 1976, an Area Sabha cannot come into existence. After the Area Sabha comes into existence, as per sub-section (1) of Section 13D of the said Act of 1976, each Area Sabha representative shall be nominated by the Corporation on the recommendation of the Councilor of the particular ward.-. 6 - 8. Even "Corporation" is defined under the said Act of 1976. Under sub-section (6) of Section 2, a "Corporation" is defined as a Corporation established under the said Act of 1976. Under clause (a) of Section 6, the Corporation is one of the Municipal Authorities contemplated under the said Act of 1976. Sub-section (1) of Section 7 of the said Act of 1976 defines the constitution of the Corporation which reads thus:
"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 (b) not exceeding ten percent of the total number of Councillors in the case of Bruhat Bangalore 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 House 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: - 7 - Provided that the persons referred to in clause (b) shall not have right to vote in the meetings of the Corporation.
9. In the present case, there is no dispute that the Corporation has been constituted. Therefore, after the Government passes an order under clause (a) of Section 13B, immediate action of making nominations will have to be taken by the Corporation in terms of sub-section (1) of Section 13D of the said Act of 1976.
10. As noted in the judgment at Annexure-A, very important functions and duties have been assigned to Area Sabhas which are laid down in Section 13G of the said Act of 1976. For example, it is the duty and function of the Area Sabha to forward proposals for schemes and development programmes to be implemented in the area to the Ward Committee. It is the obligation of Area Sabha to support tax mapping and to remind and encourage Area Sabha members of their obligations to pay municipal taxes and user charges. Under sub-section (2) of Section 13C of the said Act of 1976, all persons who are registered as voters in the electoral rolls of the polling stations in the area are the members of that Area Sabha. There are several duties assigned to Area Sabha concerning deficiencies in the water supply, deficiencies in the - 8 - sanitation arrangements, deficiencies in the street lighting arrangements, etc. Under sub-section (9) of Section 13G of the said Act of 1976, it is the function of Area Sabha to assist the activities in public health centres in the area, especially in disease prevention and family welfare and create awareness and to report outbreak of epidemics and natural calamities. This function assigned to Area Sabha under Section 13G of the said Act of 1976 is extremely important in the context of pandemic of COVID-19. It is unfortunate that no steps have been taken to constitute Area Sabhas for Mysuru City Corporation. Therefore, this is a fit case to issue a writ in the nature of mandamus to implement the provisions of Sections 13B and 13D of the said Act of 1976. WARD COMMITTEES11 Now, we come to the composition of Ward Committees as provided in Section 13H of the said Act of 1976. Sub- section (1) to (4) of Section 13H of the said Act of 1976 read thus:
"13H. Composition, territorial area and manner of filling of seats in Ward Committee.- (1) There shall be a Ward Committee for each ward in the Corporation. (2) The Ward Committee shall consist of the following, namely:- - 9 - (a) the Councillor of the Corporation representing the Ward, shall be the Chairperson of the Ward Committee; (b) ten other members to be nominated by the Corporation; out of which, there shall be,- (i) at least two members belonging to the Scheduled Castes and the Scheduled Tribes; (ii) at least three women members; and (iii) at least two members representing residents Associations, whatever name called satisfying all conditions mentioned below, namely:- (a) its registered office shall be located with in the jurisdiction of that ward; (b) it shall represent majority of residents, or civic groups, or commercial groups or industrial groups; (c) it shall have been actively engaged in its activities for not less than three years; and (d) it shall be a registered Association by whatever name called, comprising of individuals who serve in a fiduciary capacity; (3) Any person disqualified from being elected as a Councillor shall not be nominated as member of the Ward Committee. (4) An officer of appropriate rank shall be designated by the Commissioner of the Corporation to act as Secretary for each Ward Committee to provide all administrative assistance to it. All minutes of the proceedings of the meeting of the Ward Committee shall be recorded by the Secretary and a copy of the same shall be forwarded to the Corporation."
- 10 - 12. We may note here that it is the mandate of Article 243S of the Constitution of India to constitute the Ward Committees. For giving effect to the provisions of Article 243S of the Constitution of India, Section 13H has been added on the statute book. As per sub-section (1) of Section 13H of the said Act of 1976, there shall be a Ward Committee for each ward in the Corporation. In this case, there is no dispute that determination of wards has been made in terms of Section 21 of the said Act of 1976. What is required to be done is the exercise contemplated by sub-section (2) and sub-section (4) of Section 13H of the said Act of 1976. Under clause (b) of sub-section (2) of Section 13H of the said Act of 1976, ten members are required to be nominated by the Corporation. Under sub-section (4) Section 13H of the said Act of 1976, the Commissioner is under an obligation to designate an officer of appropriate rank to act as the Secretary of each Ward Committee.
13. Considering the constitutional mandate under Article 243S of the Constitution of India and the provisions of Section 13H of the said Act of 1976, the Corporation cannot postpone the decision of nominating ten members as provided in clause (b) of sub-section (2) of Section 13H of the said Act of 1976.-. 11 - We fail to understand why the Commissioner has not exercised the power under Section 13H of the said Act of 1976 by appointing Secretaries for each of the Ward Committees.
14. Under Section 13I of the said Act of 1976, the functions of the Ward Committees have been laid down. One important function is of preparation and submission of Ward Development Scheme to the Corporation for allotment of funds. It is the duty of Ward Committees to ensure proper utilisation of the funds allotted under the Ward Development Scheme. There are several duties assigned to Ward Committees concerning the implementation of the programmes and schemes of the Corporation, maintenance of water supply, maintenance of sewarage system and creation of solid waste management and sanitation work in the ward. In fact, very important duty of ensuring maintenance of parks/open spaces has been entrusted to the Ward Committees. It is the obligation of the Ward Committees to ensure afforestation and implementation of rain water harvesting schemes. By not constituting Ward Committees, there is a complete violation of constitutional mandate under Article 243S of the Constitution of India.-. 12 - 15. Section 13J of the said Act of 1976 reads thus:
"13J.
Bye-laws.- Every Corporation to which this Chapter is made applicable shall notify bye-laws for transaction of business and for finance and accounting procedures governing the working of Area Sabhas and Ward Committees, within six months from the date of coming into force of this Chapter in that Corporation."
Unless Bye-laws as aforesaid are made by the Corporation, Area Sabhas and Ward Committees will not be able to function effectively. In fact, in the absence of bye-laws, the provisions regarding Area Sabhas and Ward Committees cannot be implemented. Hence, a writ of mandamus will have to be issued to comply with the said obligation of notifying the bye-laws.
16. Hence, we dispose of the petition by passing following order: (i) We direct the State Government to pass an order as provided in clause (a) of Section 13B of the said Act of 1976 in relation to Mysuru City Corporation within a period of six weeks from the date on which a copy of the judgment and order is uploaded on the official website of this Court; (ii) Within a period of six weeks from the date of which the order under clause (a) of Section 13B of the said - 13 - Act of 1976 is issued by the State Government, the second respondent Commissioner shall place the matter before the Corporation for making nominations as per sub-section (1) of Section 13D of the said Act of 1976. The matter shall be placed by the Commissioner before the immediately next meeting of the Corporation after passing of an order under sub-section (a) of Section 13B of the said Act of 1976; (iii) We direct the Corporation to complete the process of nomination as per sub-section (1) of Section 13D of the said Act of 1976 within a period of six weeks from the date of which the matter is placed by the Commissioner before the Corporation; (iv) We direct the Commissioner to place the matter of nominating ten members to the Ward Committees in terms of clause (b) of sub-section (2) of Section 13H of the said Act of 1976 before the Corporation within a period of six weeks from the date of which this judgment is uploaded on the official website of this Court. Within a period of six weeks thereafter, the Corporation shall complete the process of making - 14 - nominations in accordance with clause (d) of sub- section (2) of Section 13H of the said Act of 1976; (v) Within a period of six weeks from the date of which this judgment is uploaded on the website of this Court, the second respondent shall comply with the requirement of sub-section (4) of Section 13H of the said Act of 1976 by designating the officers of appropriate rank as the Secretaries of each of the Ward Committee; (vi) We also direct the Mysuru City Corporation to comply with its obligation under Section 13J of the said Act of 1976 within a period of two months from today; (vii) The petition is disposed of with the above directions; (viii) For reporting compliance with the directions, list the petition on 7th October 2021. Sd/- CHIEF JUSTICE Sd/- JUDGE AHB