1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE19h DAY OF AUGUST, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.13944/2021 (LB-ELE) C/W WRIT PETITION No.13902/2021 (LB-ELE) WRIT PETITION No.9538/2021 (LB-ELE) WRIT PETITION No.12616/2021 (LB-ELE) IN WRIT PETITION No.13944/2021 BETWEEN:
1. MR.LINGAPPA GOUDORU S/O SHIVALINGAPPA AGED ABOUT71YEARS RESIDENT OF NEAR BUS STAND JALIHALA WARD NO.2, SIDHANURU TALUK RAICHUR DISTRICT – 584 128.
2. SRI BASANAGOUDA S/O SIDDNA GOUDA AGED ABOUT51YEARS RESIDENT OF JAMBUNATHANA HALLI, POST JALIHAL, SIDHANURU TALUK RAICHUR DISTRICT – 584 128.
3. NAGOJAPPA S/O MUDUKPPA AGED ABOUT41YEARS2RESIDENT OF NO.08, GRAM PANCHAYAT NEAR JALIHAL, SIDHANURU TALUK RAICHUR DISTRICT – 584 128.
4. ANNAPPA HUDEDA S/O BASAPPA HUDEDA AGED ABOUT56YEARS RESIDENT OF NEAR YELLAMMA TEMPLE JALIHALA WARD NO.2, SIDHANURU TALUK RAICHUR DISTRICT – 584 128. ... PETITIONERS (BY SRI JAYAKUMAR S.PATIL, SR. ADVOCATE A/W SRI A.MAHAMMED TAHIR, ADVOCATE (VIDEO CONFERENCING)) AND:
1. THE STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT VIKAS SOUDHA, BENGALURU – 560 001 REPRESENTED BY SECRETARY.
2. THE KARNATAKA STATE ELECTION COMMISSION NO.08, 1ST FLOOR, KSCMF BUILDING ANNEX, CUNNINGHAM ROAD, BENGALURU – 560 052.
3. THE DEPUTY COMMISSIONER RAICHUR DISTRICT RAICHUR – 584 128.
4. THE RAICHUR ZILLA PANCHAYAT RAICHUR – 584 128 REPRESENTED BY ITS EO. ... RESPONDENTS (BY SRI NITHYANANDA K.R., HCGP FOR R1, 3 AND R4 3 (PHYSICAL HEARING), SRI K.N.PHANINDRA, SR. ADVOCATE FOR SMT.VAISHALI HEGDE, ADVOCATE FOR R2 (VIDEO CONFERENCING)) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD. 01.04.2021 VIDE ANNX-D PASSED BY R-2 IN THE INTEREST OF JUSTICE AND EQUITY; CONSEQUENTLY, QUASH THE NOTIFICATION DTD. 01.07.2021 VIDE ANNX-E PASSED BY R-2 IN THE INTEREST OF JUSTICE AND EQUITY AND ETC., IN WRIT PETITION No.13902/2021 BETWEEN:
1. SRI BHEEMAYYA S/O DAADA SIDDAPPA AGED ABOUT30YEARS R/A. NO.23, MALIYABAD RAICHUR TALUK, RIACHUR DISTRICT – 584 101.
2. SRI MALLESH S., S/O NARASINGAPPA AGED ABOUT51YEARS R/A. NO.86, SIDRAMPUR RAICHUR TALUK RAICHUR DISTRICT – 584 103.
3. RAGHAVENDRA S/O JAMBAN GOUDA AGED ABOUT31YEARS R/A. NO.08, BIJANGERE, RAICHUR TALUK, RAICHUR DISTRICT – 584 103.
4. VENKATESH S/O NARASIMHALU4AGED ABOUT40YEARS R/A. No.2/148, DEVANAPALLI, RAICHUR TALUK, RAICHUR DISTRICT – 584 101.
5. HANUMESH S/O NALLA REDDI AGED ABOUT28YEARS R/A. NO.145, MALIYABAD RAICHUR TALUK RAICHUR DISTRICT – 584 101.
6. NAGENDRA S/O ANJANEYYA AGED ABOUT41YEARS R/A. NO.2/152, DEVANAPALLI RAICHUR TALUK, RAICHUR DISTRICT – 584 101.
7. HUSENAPPA S/O VENKATESH AGED ABOUT36YEARS R/A. NO.325, BIJANGERA, MITTI MALKAPUR, RAICHUR TALUK RAICHUR DISTRICT – 584 103.
8. HANMANTH S/O KUKKALAYYA AGED ABOUT43YEARS R/A. NO.257, MALIYABAD RAICHUR TALUK, RAICHUR DISTRICT – 584 103.
9. LOKESH S/O GOVT. NARSIMHA AGED ABOUT41YEARS R/A. NO.01/58/1, DEVANAPALLI, 5 RAICHUR TALUK, RAICHUR DISTRICT – 584 101. ... PETITIONERS (BY SRI JAYAKUMAR S.PATIL, SR. ADVOCATE A/W SRI A.MAHAMMED TAHIR, ADVOCATE (VIDEO CONFERENCING)) AND:
1. THE STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT VIKAS SOUDHA, BENGALURU – 560 001 REPRESENTED BY SECRETARY.
2. THE KARNATAKA STATE ELECTION COMMISSION NO.08, 1ST FLOOR, KSCMF BUILDING ANNEX, CUNNINGHAM ROAD BENGALURU – 560 052.
3. THE DEPUTY COMMISSIONER RAICHUR DISTRICT RAICHUR – 584 128.
4. THE RAICHUR ZILLA PANCHAYAT RAICHUR – 584 128 REPRESENTED BY ITS EO. ... RESPONDENTS (BY SRI NITHYANANDA K.R., HCGP FOR R1, 3 AND4(PHYSICAL HEARING), SRI K.N.PHANINDRA, SR. ADVOCATE FOR SMT.VAISHALI HEGDE, ADVOCATE FOR R2 (VIDEO CONFERENCING)) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED0104.2021 VIDE ANNEXURE-D PASSED BY R2; CONSEQUENTLY QUASH6THE NOTIFICATION DATED0107.2021 VIDE ANNEXURE-E PASSED BY R2 AND ETC., IN WRIT PETITION No.9538/2021 BETWEEN:
1. VISHWANATHA H.M., S/O MAHALINGAIAH AGED ABOUT42YEARS R/A BARAKANAHAAL AT POST HULIYUARU HOBALI CHIKKANAYAKANAHALLI TUMAKURU, KARNATAKA – 572 214.
2. KESHAVAMURTHY R., S/O RAJANNA AGED ABOUT40YEARS R/AT KEMPARAYANAHATTI THEERTHAPURA POST KANDIKERE HOBALI CHIKKANAYAKANAHALLI TALUK TUMAKURU, KARNATAKA – 572 228.
3. A.NIRANJANA MURTHY S/O ADIMURTHY AGED ABOUT56YEARS R/AT YELLENAHALLI HANDANAKERE HOBALI BARAGURU POST CHIKKANAYAKANAHALLI TUMAKURU, KARNATAKA – 572 214. ... PETITIONERS (BY SRI MANMOHAN P.N., ADVOCATE (VIDEO CONFERENCING)) 7 AND:
1. STATE OF KARNATAKA RURAL DEVELOPMENT AND PANCHAYATH RAJ DEPARTMENT M S BUILDING, BENGALURU-560001 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. THE KARNATAKA STATE ELECTION COMMISSION NO.8, KSCMF BUILDING ANNEXURE CUNNINGHAM ROAD BENGALURU-560052 REPRESENTED BY ITS COMMISSIONER. ... RESPONDENTS (BY SRI NITHYANANDA K.R., HCGP FOR R1 (PHYSICAL HEARING) SRI K.N.PHANINDRA, SR. ADVOCATE A/W SMT.VAISHALI HEGDE, ADVOCATE (VIDEO CONFERENCING)) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED3103.2021 ISSUED BY R-2 VIDE ANNEXURE-A IN SO FAR AS IT PERTAINS TO CHIKKANAYAKANAHALLI TALUK; QUASH THE NOTIFICATION DATED3103.2021 ISSUED BY R2 VIDE ANNEXURE-C IN SO FAR AS IT PERTAINS TO CHIKKANAYAKANAHALLI TALUK AND ETC., IN WRIT PETITION No.12616/2021 BETWEEN: SRI M.V.BALARAJ S/O VENKATASUBBA SHASTRY AGED ABOUT44YEARS8NO.166, MANDIKAL VILLAGE, CHIKKABALLAPURA TALUK AND DISTRICT – 562 101. ... PETITIONER (BY SRI MANMOHAN P.N., ADVOCATE (VIDEO CONFERENCING)) AND:
1. STATE OF KARNATAKA RURAL DEVELOPMENT AND PANCHAYATH RAJ DEPARTMENT M.S.BUILDING, BENGALURU – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. THE KARNATAKA STATE ELECTION COMMISSION NO.08, KSCMF BUILDING ANNEXURE, CUNNINGHAM ROAD BENGALURU – 560 052 REPRESENTED BY ITS COMMISSIONER.
3. DEPUTY COMMISSIONER D C OFFICE, DISTRICT OFFICES COMPLEX SIDLAGHATTA ROAD, CHIKKABALLAPURA – 562 101. ... RESPONDENTS (BY SRI NITHYANANDA K.R., HCGP FOR R1 AND R3 (PHYSICAL HEARING), SRI K.N.PHANINDRA, SR. ADVOCATE A/W SMT.VAISHALI HEGDE, ADVOCATE FOR R2 (VIDEO CONFERENCING)) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD.29.3.2021 ISSUED BY9THE R-2 PRODUCED AS ANNEXURE-A IN SO FAR AS IT PERTAINS TO ZILLA PANCHAYATH CONSTITUENCY OF CHIKKABALLPAUR TALUK AND ETC., THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON1608.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :-
ORDERPetitioners in these petitions seek the following prayers: “IN W.P.No.13944/2021 & W.P.No.13902/2021 (a) Issue a writ in the nature of certiorari quashing the Notification bearing No.RACHUA/41/ZP/CV/TZP/2021 dated 01-04-2021 vide Annexure-D passed by respondent No.2 in the interest of justice and equity. (a1) Issue writ in the nature of certiorari quashing impugned Notification bearing No.RACHUA/8/TZP/2021 dated 24.03.2021 vide Annexure-D1 passed by respondent No.2 in the interest of justice and equity. (b) Consequently, issue a writ in the nature of certiorari quashing the Notification bearing No.RACHUA/75/ZP- ME/TZP/2021 dated 01-07-2021 vide 10 Annexure-E passed by respondent No.2 in the interest of justice and equity. (c) Issue a writ in the nature of mandamus directing the respondent No.2-State Election Commission to issue fresh draft notification of reservation to 38 seats/constituencies as per Annexure-C in the interest of justice and equity. (d) Pass such other writ, order or direction that this Hon’ble Court deems fit to pass in the circumstances of the case. IN W.P.No.9538/2021 (i) Issue a Writ of Certiorari and quash the Notification dated 31.03.2021 issued by respondent No.2 bearing No.RaChuA/22 (TaPum-CV)/TZP/2021 (produced as ANNEXURE- “A”) insofar as it pertains to Chikkanayakanahalli Taluk; (ii) Issue a Writ of Certiorari and quash the notification dated 31.03.2021 issued by respondent No.2 bearing No.RaChuA/22/ (GPum-CV)/TZP/2021 (produced as ANNEXURE- “C”) insofar as it pertains to Chikkanayakanahalli Taluk; (iii) Issue a Writ of mandamus directing respondents to carry out the delimitation of the constituencies of Chikkanayakanahalli Taluk Panchayat 11 and that of Zilla Panchayat constituencies of Chikkanayakanahalli Taluk in accordance with the provisions of Karnataka Gram Swaraj and Panchayat Raj Act and the guidelines dated 15.09.2015 issued by respondent No.2 (produced as ANNEXURE- “E”); and; (iiiA) Issue a Writ of Certiorari and quash the notification dated 24.03.2021 issued by respondent No.2 bearing No.RaChuA/8/TZP/2021 (produced as ANNEXURE - “F”) insofar as it pertains to Chikkanayakanahalli Taluk; (iv) Pass such other and further orders as deemed fit in the facts and circumstances of the case in the interest of justice and equity. IN W.P.No.12616/2021 (i) Issue a Writ of Certiorari and quash the notification dated 29.03.2021 issued by respondent No.2 bearing No.RaChuA/34/(GiPum- CV)/TZP/2021 (produced as ANNEXURE - “A”) insofar as it pertains to Zilla Panchayat constituencies of Chikkaballapur Taluk; (ii) Issue a Writ of Certiorari and quash the notification dated 01.07.2021 issued by respondent No.2 bearing No.RaChuA/53/(GiPum- Mee)/TZP/2021 (produced as ANNEXURE- “G”) insofar as it pertains to reservation for Zilla 12 Panchayat constituencies of Chikkaballapur Taluk; (iii) Issue a Writ of Mandamus directing respondents to carry out the delimitation of Zilla Panchayat constituencies of Chikkaballapur Taluk in accordance with the provisions of Karnataka Gram Swaraj and Panchayat Raj Act and the guidelines dated 15.09.2015 issued by respondent No.2 (produced as ANNEXURE - “F”); (iv) Issue a Writ of Mandamus directing the respondent No.2 to consider the representation dated 05.04.2021 issued by the petitioner (produced as ANNEXURE - “E”); and, (v) Pass such other and further orders as deemed fit in the facts and circumstances of the case in the interest of justice and equity.
2. Sans unnecessary details the facts that are germane for consideration of the lis are as follows: The petitioners in W.P.No.13944/2021 and 13902/2021 are all residents of Sidhanuru Taluk coming under Raichur Zilla Panchayat and claimed to be prospective candidates in the ensuing election to 13 respondent No.4 Raichur Zilla Panchayat which is slated to be held in the year 2021.
3. The petitioners in W.P.No.9538/2021 are residents of Chikkanaikanahalli Taluk and call in question the delimitation notification insofar as it concerns Chikkanaikanahalli taluk Panchayat. Petitioners in W.P.No.12616/2021 are residents of Chikkaballapur taluk and concerns Zilla Panchayat constituencies of Chikkaballapur taluk. The petitioners in these cases also claim to be aspirants to contest in the ensuing elections in the respective constituencies. The impugned notification though is a draft, the learned Senior counsel and the learned counsel appearing for the petitioners submit that they would not file the objections and pursue the challenge, as according to them the impugned notification dated 01.07.2021 is contrary to law and without jurisdiction. They would also submit that the notification of demarcation of 14 boundaries issued in March 2021 has also been questioned. Therefore, these petitions are considered on its merit and the impugned draft notification would be referred to as ‘the impugned notification’ for the sake of convenience.
4. Census was carried out by Government of Karnataka in the year 2011 and the same was published in the Official Gazette as official figures of the year 2011. On 15-09-2015 the Election Commission issued a circular depicting guidelines for delimitation of constituencies of Zilla and Taluk Panchayats. In terms of guideline No.3 of the said circular all the constituencies, as far as practicable, be geographically compact areas and in delimiting regard shall be had to the physical features, facilities, communication and public convenience. Guideline No.4 directed that while determining constituencies there shall be no appreciable difference of population of each of the 15 constituencies. Guideline No.6 prescribed that the basis of delimitation shall be 2011 census.
5. Prior to the notification dated 15-09-2015, the Raichur Zilla Panchayat, in the year 2010, a year before 2011 census, consisted of 35 seats and in terms of the notification dated 15-09-2015 the seats were increased from 35 to 38 pursuant to delimitation notification. The aforesaid delimitation in the year 2015 was on the basis of 211 census.
6. The issue in the present petition is with regard to subsequent delimitation notification impugned herein. The impugned notification alters the number of seats that is existing in Raichur Zilla Panchayat from 38 to 42. It is this act that is called in question by the petitioners. Writ Petition Nos. 13944 of 2011 and 1302 of 2021 concern delimitation notification of Raichur Zilla Panchayat and Writ Petition Nos. 9538 of 2021 16 concerns the delimitation notification of a Taluk Panchayat - Chikkanayakanahalli Taluk Panchayat. W.P.No.12616/2021 concerns Chikkaballapur Zilla Panchayat. Therefore, the petitions now filed are questioning delimitation notification of Raichur Zilla Panchayat, Chikkaballapur Zilla Panchayath and Chikkanayakanahalli Taluk Panchayat.
7. Heard Sri.Jayakumar.S.Patil, Senior Advocate along Sri.A.Mahammed Tahir, learned counsel appearing for petitioners in W.P.No.13944/2021 and W.P.No.13902/2021, Sri.Manmohan.P.N., learned counsel appearing for petitioners in W.P.No.9538/2021 and 12616/2021, Sri.Nithyananda.K.R., learned High Court Government Pleader appearing for State and Sri.K.N.Phanindra, learned Senior Advocate along with Smt.Vaishali Hegde, learned counsel appearing for Election Commission. 17
8. The learned Senior Counsel Sri Jayakumar S.Patil appearing for the petitioners would contend the following: (a) That in terms of Article 243 of the Constitution of India which deals with definition and ‘population’ as defined in Article 243(f) which clearly indicates that the population as ascertained at the last preceding census. (b) That Article 243C deals with composition of panchayats and refers to population of each constituency. Therefore, population would mean in terms of what is declared in the last preceding census. (c) Section 160 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’ for short) refers to elected members and ratio of one member qua the population. Section 161 which deals with determination of elected members after census and upon publication of figures of each census the number of elected members of Zilla Panchayat on the basis of population is to be determined. Section 162 deals with reservation of seats in the Zilla Panchayat.” The learned Senior Counsel would submit that the act of de-limitation by the Election Commission is without jurisdiction as it is mandated under the statute that is 18 shall be on the basis of census. Admittedly, no census having taken place in the years 2020-2021 and on the basis of last preceding census the Election Commission had already undertaken the exercise of delimitation in the year 2015 the present Act without a fresh census becomes an act without jurisdiction is the emphatic submission of the learned Senior Counsel for the petitioners.
9. The learned counsel Sri P.N. Manmohan, appearing for the petitioners in the connected writ petitions would toe the line of submissions in so far as they concern Zilla Panchayat and in so far as it concerns Taluk Panchayat would submit that Section 121 of the Act which deals with elected members and Section 122 which deals with determination of elected members after each census would mean that a process of delimitation to be undertaken only after census figures are in place. It is his submission again that the 19 entire act of the Election Commission is without jurisdiction.
10. On the other hand, the learned Senior Counsel Sri.K.N.Phanindra representing the 2nd respondent/Election Commission has filed elaborate statement of objections, would submit – (i) that the action of delimitation cannot be questioned in the writ petition and the writ petition itself is not maintainable. (ii) that the process of delimitation had to come about in the light of amendment to Sections 160 and 121 of the Act in so far as it concerns Zilla Panchayat and Taluk Panchayat by amendment brought about in the year 2016 to the said provision. (iii) that the Election Commission has not taken any other figure other than what is notified as census in the year 2011. The variation in number of seats is a result of the said amendment to the provisions of law. (iv) that effort of the petitioners in all these cases is to scuttle the process of election. 20
11. I have given my anxious consideration to the aforesaid rival submissions made by the respective learned senior counsel and the learned counsel appearing for the petitioners and in furtherance thereof the points that arise for my consideration are: (i) Whether the writ petition questioning the process of delimitation by the Election Commission is maintainable?. (ii) Whether the impugned delimitation notification issued by the Election Commission is valid in law?.
12. Point No.(i): Whether the writ petition questioning the process of delimitation by the Election Commission is maintainable?. The contention of the learned counsel appearing for the Election Commission is that the writ petition calling in question the process of delimitation is not 21 maintainable in terms of the bar under Article 243-O of the Constitution of India. Article 243-O reads as follows: “243-O. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” Article 243-O bars interference by Courts in electoral matters when a validity of any law relating to the delimitation of any constituency or allotment of seats to such constituency made under Article 243K not to be questioned in any Court of law. 22
13. I decline to accept this submission in the light of the interpretation of the Article by the Apex Court in two of its judgments –in the case of BHARATI REDDY VS. STATE OF KARNATAKA1 and in the case of STATE OF GOA AND ANOTHER VS. FOUZIYA IMTIAZ SHAIKH AND ANOTHER2. The Apex Court in the case of Bharati Reddy (supra) has held as follows: “7. Part IX containing Articles 243, 243- A to 243-O was inserted by the Constitution 73rd Amendment Act, 1992. Article 243-O which is relevant for this case reads as under: “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 1 (2018) 12 SCC612 2021 SCC OnLine SC21123 243-K, shall not be called in question in any court; (b) No election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State.
8. A bare reading of clause (b) of Article 243-O would show that election to any panchayat cannot be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State. xx xx xx xx 13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by Respondents 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition. (Emphasis supplied) 24 and the Apex Court in the case of State of Goa (supra) while summing up its conclusions considering the manifold facets of elections has held as follows: “65. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results. I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an 25 interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced. II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner. III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election. IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority 26 including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely uptothe SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason. V. Judicial review of a State Election Commission's order is available on grounds of review of administrative orders. Here again, 27 the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election. VI. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats. VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with 28 delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision. VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies. IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities. X. The result of this position is that it is the duty of the SEC to countermand illegal 29 orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition.” (Emphasis supplied) The Apex Court in the said case was considering elections to Municipal Councils. The Apex Court clearly holds that any challenge to the order relating to delimitation or allotment of seats including preparation of electoral rolls not being part of election process can also be challenged in the manner provided by the statutory provisions dealing with delimitation and allotment of seats to such constituencies. The only bar is against commencement, subsistence and conclusion of elections, commencement to mean issuance of calendar of events. It is also to be noticed that the Apex Court in the case of Bharathi Reddy in effect holds 30 that Article 243- O of the Constitution of India cannot control Article 226 of the Constitution of India, but holds the entertainment of petitions to be discretionary. Exercising such discretion and on the submissions of the respective counsel, I proceed to consider the issue on its merit.
14. Point No.(ii): Whether the impugned delimitation notification issued by the Election Commission is valid in law?. Before embarking upon a journey of consideration of the kernel of this conundrum, I deem it appropriate to notice the position and the provisions of law concerning the issue.
15. Part-IX of the Constitution of India deals with ‘Panchayats’. Article 243 reads as follows:- “243. Definitions.- In this Part, unless the context otherwise requires,— 31 (a) “district” means a district in a State; (b) “Gram Sabha” means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level; (c) “intermediate level” means a level between the village and district levels specified by the Governor of a State by public notification to be the intermediate level for the purposes of this Part; (d) “Panchayat” means an institution (by whatever name called) of self- government constituted under article 243B, for the rural areas; (e) “Panchayat area” means the territorial area of a Panchayat; (f) “population” means the population as ascertained at the last preceding census of which the relevant figures have been published; (g) “village” means a village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified.” (emphasis supplied) In terms of Article 243(f), ‘population’ means the population as ascertained at the last preceding census 32 of which the relevant figures have been published. Therefore the last preceding census in the State of Karnataka was of the year 2011. It is an admitted fact that there is no census conducted in the years 2020- 2021. Article 243(d) defines ‘panchayat’ to mean an institution constituted under Article 243B for rural areas. Therefore, Part-IX which deals with panchayats is primarily concerning rural areas.
16. Article 243C deals with composition of Panchayats and reads as follows: “243C. Composition of Panchayats.- (1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats: Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State. (2) All the seats in a Panchayat shall be filled by persons chosen by direct election 33 from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. (3) The Legislature of a State may, by law, provide for the representation— (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level; (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level; (c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat; (d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within— (i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level; 34 (ii) a Panchayat area at the district level, in Panchayat at the district level. (4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats. (5) The Chairperson of— (a) a panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and (b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof.” (Emphasis supplied) Article 243C (2) deals that seats in a panchayat shall be filled by direct election in such manner with the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the panchayat area. Article 243K deals with elections to panchayats and reads as follows:
35. “243K. Elections to the Panchayats.- The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.” 36 Power of conducting all elections to the Panchayats, in terms of Article 243K, vest with the State Election Commission. The Scheme of the Constitution insofar as Elections to Panchayats, power of the Election Commission is as aforesaid.
17. The statute that falls for consideration in the case at hand, is the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as the ‘Act’ short). Certain provisions of the Act which are germane with regard to Zilla Panchayat and Taluk Panchayat are as follows: Zilla Panchayat: The Act defines ‘Polulation’ and reads as follows: “2. Definitions.- xx xx xx (29) “Population” means the population as ascertained at the last preceding census of which the relevant figures have been published;” 37 In terms of the said definition ‘Population’ would mean, the Population as ascertained in the last preceding census which has been published.
18. Chapter X of the Act deals with constitution of Zilla Panchayat. Section 160 deals with elected members of the Zilla Panchayat and reads as follows:- “160. Elected members.- The elected members of the Zilla Panchayat shall consist of not less than twenty persons elected from the Taluks in the District, the number of members to be elected from each Taluk being fixed by the State Election Commission in accordance with the scale of one member for every population between thirty five thousand and forty- five thousand: Provided that in case of,- (i) Uttara Kannada and Chickmagalur district it shall be one member for every thirty thousand or part thereof of the population; (ii) Bangalore Urban district, it shall be one member for every twenty thousand or part thereof of the population; 38 (iii) Kodagu district, it shall be one member for every eighteen thousand or part thereof of the population.” (emphasis supplied) In terms of Section 160 elected members of Zilla Panchayat shall consist of not less than 20 persons elected from taluks in the District in accordance with the scale of one member for every population between 35,000 and 45,000. Section 160 is amended by Act 44 of 2015 with effect from 25-02-2016 in insertion of the words every population between 35,000 and 45,000 as against 40,000 earlier existing. Section 161 deals with determination of elected members after census and reads as follows: “161. Determination of elected members after census.- Upon the publication of the figures of each census, the number of elected members of a Zilla Panchayat shall be determined by the State Election Commission on the basis of the population of the district as ascertained at that census:
39. Provided that the determination of the number as aforesaid shall not affect the then composition of the Zilla Panchayat until the expiry of the term of office of the elected members then in office.” In terms of Section 161 upon publication of figures of each census, the number of elected members in a Zilla Panchayat shall be determined on the basis of population ascertained at that census. The proviso depicts or directs that determination of number as aforesaid shall not affect composition of Zilla Panchayat until the term of office of elected members then in office. The purport of the proviso is that during the tenure if the process of delimitation is undertaken by the Election Commission, the same would not come into effect till the term of the said Zilla Panchayat expires. Section 163 empowers the Election Commission to undertake an exercise of delimitation. Section 163 of the Act reads as follows:
40. “163. Delimitation of territorial constituencies.- The State Election Commission shall, by notification,- (a) divide the area within the jurisdiction of every Zilla Panchayat, for the purpose of election to such Zilla Panchayat into as many signal member territorial constituencies as the number of members required to be elected under section 160; (b) determine the extent of each territorial constituency which shall be a Taluk or part of a Taluk ; Provided that the area comprised in a constituency of a Zilla Panchayat determined under section 124, shall not be divided while determining the extent of each territorial constituency. (c) determine the territorial constituency or constituencies in which seats are reserved for the persons belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and for Women.” (Emphasis supplied) In terms of Section 163(a) the Election Commission may divide the area within the jurisdiction of every Zilla Panchayat for the purpose of election into many single member territorial constituencies required to be elected 41 under Section 160. Therefore, Sections 160, 161 and 163 are to be intertwined for the purpose of consideration of the issue brought up in the lis. Taluk Panchayat:
19. Section 121 of the Act deals with elected members of the Taluk Panchayat and reads as follows: “121. Elected members.- The number of elected members of a Taluk Panchayat shall consist of persons elected from the territorial constituencies in the Taluk as may be notified from time to time by the State Election Commission at the rate of one member for every population between twelve thousand five hundred and fifteen thousand or part thereof, of the Taluk: Provided that in Taluks having a population of not exceeding one lakh, there shall be a minimum of eleven elected members.” (emphasis supplied) In terms of Section 121 the number of elected members of a Taluk Panchayat shall consist of persons elected from the territorial constituencies in the Taluk as may be notified from time to time by the Election 42 Commission and at the rate of one member for every population between 12500 and 15000. The words 12500 to 15000 come about by way of an amendment on 25-02-2016 substituting the earlier figure of 10000. Section 122 deals with determination of elected members after each census and reads as follows: “122. Determination of elected members after each census.- Upon the publication of the figures of each census, the number of elected members of a Taluk Panchayat shall be determined by the State Election Commission on the basis of the population of the Taluk as ascertained at that census: Provided that the determination of the number as aforesaid shall not affect the then composition of the Taluk Panchayat until the expiry of the term of office of the elected members then in office.” Section 122 is identical to Section 161 where census is the basis for determination of elected members of the Panchayat. It is on the bedrock of the aforesaid Articles of the Constitution of India and the provisions of the Act, the case at hand requires consideration. 43 Raichur Zilla Panchayat:
20. The Election Commission issued a notification on 15-09-2015 on the basis of census of the year 2011 delimiting Raichur Zilla Panchayat and increasing seats from 35 to 38. Therefore, on the basis of census a process of de-limitation did take place at the hands of the Election Commission. The notification also contains guidelines for delimiting boundaries of Zilla Panchayat in terms of Section 163 (supra). Clause 6 of the Guidelines made the 2011 census to be the basis for undertaking an exercise of delimiting the boundaries of the Zilla Panchayat. In the process of delimitation undertaken in terms of the notification dated 15-09- 2015 the Election Commission issues another notification on 31-10-2015 determining boundaries for the purpose of conduct of elections. 44
21. Two developments take place after issuance of the said notification. One being, the amendment to Section 160 with effect from 25.02.2016, with regard to insertion of one member for every population between 35,000 and 45,000 as against 40,000 that was existing earlier and the other being that two constituencies Lingasugur and Devadurga, which were part of Zilla Panchayat in the year 2016 upgraded to municipalities. Therefore, the population of these two constituencies is to be deleted from the total population of the rural area as Article 243 deals with ‘panchayats’ and ‘panchayats’ to mean rural areas. Comparative details of 2016 Raichur Zilla Panchayat in juxta position to 2021 Raichur Zilla Panchayat after removal of two constituencies which became urban by upgradation to be municipalities, are as follows:
2016. Raichur ZP Details Sl. Taluk Population ZP Seats No.1. Raichur 265464 7 45 2. Manvi 289874 8 3 Devadurga 251677 7 4. Lingasugur 290366 8 5 Sindhanur 292880 8 Total 1389361 38 2021 Raichur ZP Details Sl. Taluk Population ZP Seats No.1. Raichur 264564 8 2. Manvi 132925 4 3 Devadurga 236647 7 4. Lingasugur 214175 7 5 Sindhanur 244520 7 6. Siravara 107735 4 7. Maski 157487 5 Total 1358053 42 The total population that came out of the Zilla Panchayat area after such upgradation is as follows: Sl. Taluk Name of Town Population No Panchayat (Urban) 1. Lingasugur Hatti 16278 2 Devadurga Jalahalli 15030 Total 31308 This development read with Section 160 of the Act empowering the Election Commission to fix number of 46 members to be elected from each Taluk on the basis of population ranging between 35000 and 45000,the impugned notification cannot be held to be illegal, the reason being the alteration in terms of afore-extracted chart. In the year 2016 Raichur Zilla Panchayat population was 1389361 and Zilla Panchayat seats on the basis of population were fixed at 38. If the population of 31308 gets upgraded to municipalities belonging to Lingasugur and Devadurga, the 2021 Raichur Zilla Panchayat gets a reduced population of 1358053. The Election Commission has taken one member for every population of 35000 and as the statute mandates that it could be taken between 35000 and 45000, the Election Commission has uniformly applied 35000 population for one member of the Zilla Panchayat and a plain arithmetic for 1358053 is divided by 35000 the result would be 42 seats. 47 Chikkanaikanahalli Taluk Panchayat:
22. Insofar as the impugned notification concerning Taluk Panchayat, Section 121 of the Act (supra) leaves none in doubt, as Section 121 clearly mandates that number of elected members of a Taluk Panchayat shall consists of persons elected from territorial constituencies in the Taluk as may be notified by the Election Commission from time to time. Therefore, the section itself depicts a condition that it is subject to territorial constituencies as may be notified by the Election Commission from time to time. On the basis of census report of 2011 the rural population of Chikkanaikanahalli Taluk was 1,88,901 and in terms of Section 121 of the Act as it existed prior to amendment in the year 2015 19 seats were allotted to Chikkanaikanahalli Taluk. After the 2015 Huliyur Grama Panchayat which was a part of Chikkanaikanahalli Taluk Panchayat with population of 15,413 is subsequently upgraded by the Government as 48 an Urban Local Body Town Panchayat. Therefore, the population of Huliyur Gram Panchayat is excluded from the rural population of Chikkanaikanahalli Taluk which has resulted in reduction in rural population of Chikkanaikanahalli Taluk. The earlier population as stated was 1,88,901 in terms of 2011 census. In view of upgradation of Huliyur Panchayat population of 15,413 is reduced from Chikkanaikanahalli. The present population figures are as follows:. “1,88,901 (earlier rural population) - 15,413 (upgraded as urban population) 1,73,488 (present total rural population).” Therefore, the population of Chikkanaikanahalli is now 1,73,488 and in view of the amendment to Section 121 of the Act, the Election Commission has taken 12,500 population for one seat and has divided 1,73,488 population by 12,500 for one seat which clearly comes to 14 seats as is now earmarked for Chikkanaikanahalli 49 reducing it from 19 that existed in 2015. The reduction by the Election Commission in the impugned notification cannot be termed to be illegal and it is because of such upgradation the reduction has taken place. The action of the Election Commission can neither be held to be arbitrary or illegal and even contrary to the Act. As indicated in the case of Taluk Panchayat, the basis for such alteration is the census of 2011 in terms of amendment to Section 121 of the Act with effect from 25.02.2016. No fault can be found in the action of the Election Commission and no right of the petitioners is taken away by the impugned action. Chikkaballapur Zilla Panchayat:
23. It is the same principle that has been applied even to Chikkaballapur Zilla Panchayat which has resulted in increase of seats from 28 to 31 and consequently, the number of Zilla Panchayat 50 constituencies within Chikkaballapur taluk has increased from 4 to 5. The justification of the Election Commission that this was necessitated by carrying out the exercise of delimitation for the purposes of fixing territorial boundaries of five new constituencies by breaking up the four existing constituencies deserves acceptance, as it is a result of operation of the statute i.e., Section 160 of the Act. The reasons indicated while considering Raichur Zilla Panchayat supra, would become applicable to the consideration of Chikkaballapur Zilla Panchayat as well.
24. Therefore, it is the afore said explanation of the Election Commission that sounds acceptance in contra-distinction to what is contended by the petitioners as the action of the Election Commission in effecting delimitation by the impugned notification is on the basis of the very census of 2011. Therefore, there is no violence caused to the provisions of law as is 51 contended by the learned senior counsel appearing for the petitioners. If in the afore-extracted peculiar facts the Election Commission had not undertaken the exercise as it has done, it would render the amendment to Sections 160 and 121 with effect from 25-02-2016, otiose.
25. The contention of the petitioners could have been accepted if the Election Commission had taken the basis of population for such determination other than what was determined in the census of 2011. In my considered view on a conjoint reading of Sections 160, 161, 163, 121 and 122 of the Act the action impugned of the Election Commission cannot be found fault with. In fact, the constitutional and the statutory object cannot be effectively achieved unless the delimitation exercise of this kind is undertaken by the Election Commission. 52
26. To both Zilla Panchayat and Taluk Panchayat, the only rider is in terms of the proviso appended to Sections 161 and 122 which bar the Election Commission to bring into force the delimitation till the term of office of elected members would get completed. In all these cases at hand, the term of office of elected members of either Zilla Panchayat or Taluk Panchayat has indisputably come to an end. Therefore, the bar in the proviso to the Election Commission ceases to operate once the term is over and the Election Commission is empowered to bring in a delimitation notification for the ensuing elections in accordance with law.
27. The submission of the learned senior counsel or the learned counsel for the petitioners is that if a statute prescribes a particular mode of performing the act under the statute, it shall be done only by that way and not in any other manner. There can be no qualm 53 with regard to this principle of law. It would have been acceptable if the Election Commission had departed from the 2011 census and recorded its own finding of population figures. The Election Commission has not deviated from the census of 2011 for the petitioners to contend that the act of the Election Commission is in violation of either Section 161 or Section 122 of the Act as the case would be. Therefore, this principle of law as contended is inapplicable to the facts of the case at hand.
28. In view of the preceding analysis, I decline to accede to the contentions of the petitioners that the case warrants a judicial hands on and declare a judicial hands off, not on maintainability, but on the merit of the matter. 54
29. For the aforesaid reasons, the Writ Petitions lack merit and are accordingly dismissed. In view of dismissal of the petitions, all pending applications also stand dismissed. Sd/- JUDGE bkp CT:MJ