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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 9TH DAY OF APRIL, 2021

BEFORE

THE HON’BLE MR.JUSTICE M.NAGAPRASANNA

WRIT PETITION No.200735/2021 (LB-ELE)

C/W

WRIT PETITION No.200790/2021 (LB-ELE)

WRIT PETITION No.200817/2021 (LB-ELE)

IN W.P.NO.200735/2021

BETWEEN:

MD. JEELANI S/O ABDUL WAHEED

AGE: 50 YEARS, OCC: SOCIAL WORK

R/O H.NO.17-3-46, GANDHI NAGAR

MAILOOR, BIDAR-585403

... PETITIONER

(BY SRI SHIVASHARANA REDDY, ADVOCATE)

AND:

1. THE DEPUTY COMMISSIONER

BIDAR, BIDAR-585401

2. THE SECRETARY, URBAN DEVELOPMENT

AND MUNICIPAL AFFAIRS

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VIKAS SOUDHA, 4TH FLOOR

BENGALURU-560001

3. THE COMMISSIONER

BIDAR MUNICIPALITY, BIDAR

MOHANRAJ MARKET

BIDAR-585401

... RESPONDENTS

(BY SRI Y.H.VIJAYAKUMAR, AAG A/W

SMT. ANURADHA M. DESAI, GA FOR R1 & R2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO

QUASH THE SUBSEQUENT KARNATAKA GAZETTE

NOTIFICATION VIDE NO.£ÀCE 94 PÉJADgï 2018, É̈AUÀ¼ÀÆgÀÄ,

16.03.2021, AS PER ANNEXURE-B TO WRIT PETITION

ISSUED BY RESPONDENT NO.2 AUTHORITY ONLY IN

RESPECT OF GRANTING RESERVATION AT WARD NO.26 TO

‘GENERAL WOMEN CATEGORY’ FROM ‘BACKWARD CLASS A-

CATEGORY’ AS PER ITS PREVIOUS KARNATAKA GAZETTEE

NOTIFICATION DATED 13.01.2021 AND ETC.

IN W.P.NO.200790/2021

BETWEEN:

BIRJU UPADHAYA

S/O WARANGAL

AGED ABOUT 37 YEARS

OCC: SOCIAL WORKER

R/O DINDAYAL NAGAR

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HYDERABAD ROAD

BIDAR-585401 ... PETITIONER

(BY SRI JAIRAJ K. BUKKA, ADVOCATE)

AND:

1. THE CHIEF SECRETARY TO

GOVERNMENT GOVERNMENT OF KARNATAKA

VIDHANA SOUDHA BENGALURU-560001

2. THE PRINCIPAL UNDER SECRETARY

URBAN DEVELOPMENT DEPARTMENT

(MUNICIPALITIES AND URBAN DEVELOPMENT AUTHORITIES)

ROOM NO.435, 4TH FLOOR VIKASA SOUDHA, VIDHANA VEEDHI

BENGALURU-560001

3. THE DIRECTORATE OF MUNICIPAL ADMINISTRATION 9TH AND 10TH FLOORS

VISVESHWARAIAH TOWER

DR. B.R. AMBEDKAR VEEDHI BENGALURU-560001

4. THE DEPUTY COMMISSIONER

BIDAR DISTRICT, BIDAR-585401

5. THE COMMISSIONER

CITY MUNICIPAL COUNCIL BIDAR DISTRICT, BIDAR-585401

6. THE COMMISSIONER

KARNATAKA STATE ELECTION COMMISSION, NO.08, 1ST FLOOR

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K.S.C.M.F. BUILDING ANNEXE

CUNNINGHAM ROAD BENGALURU-560052

... RESPONDENTS

(BY SRI Y.H.VIJAYAKUMAR, AAG A/W

SMT. ANURADHA M. DESAI, GA FOR R1 TO R4 ;

SRI K.N.PHANEENDRA, SENIOR COUNSEL A/W

SRI AMARESH S. ROJA, ADVOCATE FOR R6)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO

QUASH THE IMPUGNED NOTIFICATION PASSED BY THE 2ND

RESPONDENT VIDE BEARING NUMBER SL.NO.NAAE 94 KMR

2018 BENGALURU DATED 16.03.2021 OF SERIAL NO.32 AND

WARD NO.32 WHICH IS AT ANNEXURE-M AND ETC.

IN W.P.NO.200817/2021

BETWEEN:

SYED MANSOOR AHMED QADRI

S/O LATE SYED AHMED QADRI AGE: 55 YEARS,

OCC: CONSULTING ENGINEER R/O H.NO.5-1-110, AHMED BAAG

GOLEKHANA, BIDAR-585401 ... PETITIONER

(BY SRI SACHIN M. MAHAJAN, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY

DEPARTMENT OF URBAN DEVELOPMENT

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AND MUNICIPAL ADMINISTRATION,

VIDHANA SOUDHA, BENGALURU-560001

2. THE KARNATAKA STATE ELECTION COMMISSION, NIRVACHANA NILAYA,

SHESHADRI ROAD, BENGALURU-560001 REPRESENTED BY ITS COMMISSIONER/

UNDER SECRETARY

3. THE DEPUTY COMMISSIONER BIDAR-585401

4. THE ASSISTANT COMMISSIONER

BIDAR-585401

5. THE TAHASILDAR

BIDAR-585401

6. THE CITY MUNICIPAL COUNCIL BIDAR REPRESENTED BY

ITS COMMISSIONER, BIDAR-585401

... RESPONDENTS

(BY SRI Y.H.VIJAYAKUMAR, AAG A/W

SMT. ANURADHA M. DESAI, GA FOR R1 & R3 TO R5;

SRI K.N.PHANEENDRA, SENIOR COUNSEL A/W

SRI AMARESH S. ROJA, ADVOCATE FOR R2)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH

THE NOTIFICATION/ORDER 29.03.2021 BEARING

NO.RAA.CHU.AA./45/EUB/2021, BENGALURU DATED 29.03.2021 ISSUED BY RESPONDENT NO.2 VIDE

ANNEXURE-G INSOFAR AS IT RELATES TO WARD NOS.5 AND 6 OF CMC, BIDAR AND ETC.

THESE PETITIONS COMING ON FOR PRELIMINARY

HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

These writ petitions call in question certain

notifications of reservation concerning ward Nos.5, 6,

26 and 32, all Municipal wards of Bidar City.

W.P.No.200735/2021 concerns ward No.26,

W.P.No.200790/2021 concerns ward No.32 and

W.P.No.200817/2021 concerns ward Nos.5 and 6

2. Since all these petitions seek to challenge

electoral process in the aforesaid municipal wards of

Bidar city, they are taken up together and are

disposed of by this common judgment.

3. Heard Sri Shivasharana Reddy,

Sri Jairaj K. Bukka and Sri Sachin M. Mahajan, learned

counsel for the petitioners and Sri Y.H.Vijaykumar,

learned Additional Advocate General for the State and

Sri K.N.Phaneendra, learned Senior counsel and

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Sri Amaresh S. Roja, learned counsel appearing for

the State Election Commission.

W.P.No.200735/2021 & W.P.No.200790/2021

4. The petition in W.P.No.200735/2021 calls

in question the notification dated 16.03.2021

reserving municipal ward No.26 of Bidar city for

‘General Woman’. The State Government by a

notification dated 13.01.2021 notified ward No.26 to

be reserved for Backward Class ‘A’ Category. This

was a draft notification calling for objections from the

stakeholders with regard to reservation made to all

the 35 wards of Bidar City Municipality.

5. It transpires that no voters of the

respective wards filed any objection within the time

stipulated, to the notification dated 13.01.2021. After

about 60 days, the State Government issued a final

notification on 16.03.2021 altering the reservation

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insofar as it pertains to ward No.26 from ‘Backward

Class ‘A’ Category’ to ‘General Woman’. No reasons

are indicated in the notification for a change from

‘Backward Class ‘A’ Category’ to that of ‘General

Woman’.

6. W.P.No.200790/2021 concerns ward No.32

of Bidar city and raises an identical question of change

of reservation from ‘Scheduled Caste’ to ‘General

Woman’. The facts in this writ petition are that

reservation of ward No.32 made in favour of ‘General

Woman’ had become subject matter of

W.P.No.204314/2018 and connected cases wherein a

notification changing the reservation from ‘Scheduled

Caste’ to ‘General Woman’ was called in question.

The said writ petitions were disposed on an

undertaking given by the learned Additional

Government Advocate that the notification impugned

would be withdrawn and were in fact withdrawn in

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terms of the undertaking. Therefore, the ward

continued to be reserved in favour of ‘Scheduled

Caste’. The Government issued a notification on

13.01.2021 reserving ward No.32 in favour of

‘Scheduled Caste’ which was in tune with the

undertaking given by the Government before this

Court in the aforesaid writ petitions. After about 60

days, claiming to be issuing a final notification, again

without there being any objections from any

stakeholder before the last date changed the

reservation of ward No.32 from ‘Scheduled Caste’ to

‘General Woman’.

7. These writ petitions were filed on

24.03.2021 and 25.03.2021. The learned Government

Advocate was directed to accept notice on 26.03.2021

and seek instructions in the matter. The matter was

listed again on 31.03.2021 and at the request of the

learned Government Advocate, the matter was listed

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on 01.04.2021, on 01.04.2021 again at the request of

learned Government Advocate the matter was

adjourned to 05.04.2021 and on 05.04.2021, again on

the request of the learned Government Advocate was

adjourned to 06.04.2021. In W.P.No.200735/2021

on 06.04.2021, for want of instructions from the

Government, this Court was constrained to pass an

interim order on 06.04.2021 notwithstanding the

calendar of events being notified on 29.03.2021 by

the State Election Commission. The matter was again

listed on 08.04.2021 and the learned Additional

Advocate General was heard and the matter was

adjourned to 09.04.2021. All the respective counsel

appearing for the petitioners in these cases and the

learned Additional Advocate General and

Sri K.N.Phaneendra, learned Senior Counsel

representing the State Election Commission were all

heard at length.

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8. After hearing the respective learned

counsels appearing for the parties, though this Court

finds glaring illegality in the action of the State in

varying reservation from draft notification, without

there being any objections filed by any stakeholder in

the final notification, since calendar of events are

notified by the State Election Commission on

29.03.2021, this Court would hold its hands to

interfere with the process of election by interjecting

the same in view of the judgment of the Hon'ble Apex

Court in the case of N.P.Ponnuswami vs. The

Returning Officer, Namakkal Constituency,

Namakkal, Salem Dist., and others reported in

AIR 1952 SC 64. Interference in the process of

election once the calendar of events are notified would

fall foul of the law laid down by the Hon'ble Apex

Court in the case of N.P.Ponnuswami which is

reiterated by the Hon'ble Apex Court in its latest

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judgment in the case of State of Goa and another

vs. Fouziya Imtiaz Shaikh and another reported in

2021 SCC Online SC 211 wherein the Hon'ble Apex

Court 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 interference is called for when

the electoral process is “imminent” i.e, the

notification for elections is yet to be announced.

(Emphasis supplied)

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9. Therefore, in my considered view, the writ

petitions which in effect challenge the calendar of

events issued by the State Election Commission

cannot be entertained at this stage as it would run

counter to the aforesaid judgments of the Hon'ble

Apex Court.

W.P.No.200817/2021

10. This writ petition concerns ward Nos.5 and

6 of the City Municipality, Bidar. The allegation in the

writ petition is, 750 voters of ward No.5 are shown as

voters in ward No.6. The contention of Sri Sachin M.

Mahajan, learned counsel for the petitioner that it

would tilt the balance in favour of particular party

which is illegal and right to vote would be taken away

by this method of the State issuing notification on

16.03.2021. This writ petition is filed on 06.04.2021,

long after issuance of the notification of calendar of

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events by the Second Respondent/State Election

Commission. An identical issue came up for

consideration before the Hon'ble Apex Court in the

case of The State of Karnataka and others vs.

Gunjahalli Nagappa and others reported in (1976)

1 SCC 204, the Hon'ble Apex Court has held as

follows:

“ State of Karnataka v. Gunjahalli

Nagappa, (1976) 1 SCC 204

11. That takes us to the alternative

argument advanced by the learned Solicitor

General on behalf of the State Government. He

contended that in any event even if the

impugned order was bad and the election

process was liable to be continued from the

stage, at which it was interrupted, the poll

could be taken only on the basis of the revised

electoral roll which had come into being, in the

meanwhile, in February 1975 and, therefore, it

was necessary for the designated officer to

correct the divisional lists of voters so as to

bring them in accord with the revised electoral

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roll. This contention is also without force. It is

true that there is no provision in the Act similar

to Section 23 sub-section (3) of the

Representation of the People Act, 1950

providing that no amendment, transposition or

deletion of any entry in the list of voters for a

division shall be made and no direction for the

inclusion of any name in such list of voters

shall be given after the last date for making

nominations for an election in the division. But

the scheme of the Act and particularly Sections

14 and 15 make it clear that it is one list of

voters for each division that is contemplated to

be in force during the entire process of

election. The list of voters is to be prepared for

the election and “election” means the entire

process consisting of several stages and

embracing several steps by which an elected

member is returned, whether or not it is found

necessary to take a poll. Vide N.P.

Ponnuswami v. Returning Officer, Namakkal

Constituency [AIR 1952 SC 64 : (1952) SCR

218 : 1 ELR 133] . The list of voters must,

therefore, a fortiori remain the same

throughout the process of election. There

cannot be one list of voters for determining the

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eligibility to stand as a candidate and another

for determining the eligibility to vote, at the

same election. That would not only be

irrational, but would also introduce confusion

and uncertainty in the election process.

Candidates would not know at the time when

they file their nominations as to what is the

strength and composition of the electorate in

the division in which they are contesting the

election. They would also be handicapped in

canvassing for votes. It would indeed be a

strange and anomalous position if there were

two or more different lists of voters at different

stages of the same election. Sub-section (1) of

Section 14 does not contemplate a list of

voters which keeps on changing from time to

time during the election process. It deems the

electoral roll for the territorial area of the

division in force at the relevant time to

be the list of voters for the division “for the

purpose of the Act”, that is for the purpose of

election which is the whole process culminating

in a candidate being declared elected and not

merely polling. The same list of voters is,

therefore, to prevail for all stages in the

election. This we find emphasised also in sub-

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section (3) of Section 14 which enacts that

every person whose name is in the list of

voters referred to in sub-section (1) shall be

qualified to vote at the election of a member

for the division to which such list pertains.

Sub-section (2) of Section 15 also points in the

same direction. It says that

“the list of voters shall be conclusive

evidence for the purpose of determining under

this section whether the person is qualified or

is not qualified to vote or is qualified or is not

qualified to be elected as the case may be, at

an election”.

The reference here, as a matter of plain

grammar, is indisputably to the same list

of voters which is to be conclusive

evidence for both purposes. It is,

therefore, clear, on a proper

interpretation of the provision of the Act,

that the Legislature did not intend that

the list of voters should change from time

to time during the process of election and

the relevant electoral roll for the purpose

of preparation of the list of voters must

consequently be taken to be the electoral

roll in force at the date when the election

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process commenced, that is, the date

when the calendar of events was

published. The same view was taken by a

Division Bench of the Mysore High Court in

Shivappa Chanamallappa Jogendra V.

Basavannappa Gadlappa Sankar [(1965) 2 Mys

LJ 289]. We are in agreement with that view.

The poll in the present case must, therefore,

be taken on the basis of the list of voters for

each division prepared with reference to the

electoral roll in force on December 7, 1974,

that being the date on which the calendar of

events was published by the Returning Officer.

12. One other question was also raised

before us, namely, whether the

designated officer can be required to

rectify the list of voters for a division, if it

can be shown that the list of voters does

not correspond exactly with the electoral

roll for the territorial area of the division,

as for example, some voters in a

particular house in a census block number

falling in the division, though shown in

the electoral roll as such, are, through

inadvertence, omitted to be included in

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the list of voters for the division. It is not

necessary for the purpose of the present

appeal to decide this question, but we

may point out that till the election process

has commenced by the issue of notice

fixing the calendar of events, there is no

reason why the designated officer should

not be entitled to rectify such defect in

the list of voters and bring the list of

voters in conformity with the electoral

roll. But once the calendar of events is

published and the election process has

begun, it is extremely doubtful whether

any changes can be made in the list of

voters for the purpose of setting right any

such defect. We, however, do not wish to

express any final opinion on this point.”

(Emphasis supplied)

11. Therefore, entertaining the writ petition at

this stage on the plea of the petitioner would again fall

foul of the judgment of the Hon'ble Apex Court supra.

The learned counsel for the petitioner submits that on

08.04.2021 there is a new voters list drawn up which

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also is not in conformity with the notification dated

16.03.2021. If that be so, it is for the petitioner to

submit a representation forthwith to the respondents

who would be obliged to consider the same in

accordance with law.

12. For the aforesaid reasons, I pass the

following:

ORDER

W.P.No.200735/2021 and 200790/2021 are

dismissed.

W.P.No.200817/2021 is dismissed with the

observations made hereinabove.

Sd/-

JUDGE

NB*