IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT PETITION NO.33056 OF 2019 (LB-RES-PIL) BETWEEN:
1. MR.ABDUL GAFOOR AGED ABOUT 39 YEARS C/O.ABDUL PAKIRABBA #15-8-409/21, 202 ODESSEY APARTMENT ARYA SAMAJA ROAD MANGALORE DAKSHINA KANNADA-575 003 2. MR.MOHAMMED HANEEF AGED ABOUT 42 YEARS S/O.HASSANABB, #4-122 MUNEER MANZIL BAJAL NANTHOOR MANGALORE DAKSHINA KANNADA-575 003 ... PETITIONERS (BY SHRI NITIN A.M., ADVOCATE) AND:
1. STATE OF KARNATAKA REP. BY PRINCIPAL SECRETARY DEPARTMENT OF URBAN DEVELOPMENT M.S.BUILDING BENGALURU-560 001 2. THE STATE ELECTION COMMISSION PARK HOUSE, CUBBON PARK BENGALURU-560 001 REP. BY ITS COMMISIONER 3. THE MANGALORE CITY CORPORATION LALBAGH, M.G.ROAD MANGALORE-573 003 REP. BY ITS COMMISSIONER ... RESPONDENTS (BY SHRI S.S.MAHENDRA, AGA FOR R1;
SHRI K.N.PHANEENDRA, SENIOR COUNSEL FOR SMT.VAISHALI HEGDE, ADVOCATE FOR R2; SHRI GIRIDHAR H., ADVOCATE FOR R3) ---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT RESPONDENT NO.2 TO TAKE ALL NECESSARY STEPS FOR THE PURPOSE OF HOLDING ELECTION FOR CONSTITUTING RESPONDENT NO.3 AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER We have heard the learned counsel appearing for the petitioners, the learned Additional Government Advocate appearing for the first respondent, the learned Senior Counsel appearing for the second respondent and also the learned counsel appearing for the third respondent.
2. The third respondent-Corporation has been constituted under the Karnataka Municipal Corporations Act, 1976 (for short ‘the said Act’). The provisions of the said Act have been amended to bring the same in conformity with the provisions of part IXA of the Constitution of India incorporated by 74th Constitutional amendment. The third respondent- Corporation is constituted in accordance with Section 6 of the said Act which consists of the Corporation, the Standing Committees and the Commissioner. Under Section 7 of the said Act, the Corporation consists of the elected councillors and the nominated councillors as well as certain members of the House of People and the State Legislative Assembly. As provided under Section 8 of the said Act, the term of the councillors shall be five years that is how the term of the Corporation is five years. The term of the third respondent expired on 12th March 2019. In fact, considering the mandate of sub-clause (a) of clause (3) of Article 243U of the Constitution of India, the process of the election to constitute Corporation ought to have been completed before 12th March 2019. But, even five months thereafter, the process of election has not yet commenced. Thus, by not holding the election to constitute the third respondent-Corporation, there has been a complete violation of the constitutional mandate.
3. The learned Senior Counsel appearing for the second respondent stated that in fact, the second respondent had approached this Court and sought a writ of mandamus. He further stated that there was an impediment in the form of interim relief granted by this Court to conduct the election before 12th March 2019 and the interim order came to an end only on 31st May 2019.
4. Now the election to constitute the third respondent- Corporation cannot be delayed any longer. The failure to hold the election completely destroys the intention of bringing about 74th amendment to the Constitution. As a result of failure to hold the election, Wards Committees cannot be constituted. Article 243S of the Constitution of India mandates the constitution of the Wards Committees.
5. To avoid any further violation of the express provisions of the Constitution, the election will have to be held at the earliest. Under Section 24 of the said Act, the date of elections to constitute a Corporation must be fixed by the State Election Commission in consultation with the Government. This process cannot be delayed any further and in any case, the process of election shall be commenced immediately and completed under any circumstances by 15th November 2019. We hope and trust that the State Government cooperates with the second respondent for holding of election to constitute the third respondent-Corporation.
6. We must note here that, all the concerned must take a note of the fact that there is absolutely no justification for not conducting the election before expiry of the term of the Corporation i.e. on or before 12th March 2019.
7. Accordingly, we dispose of the petition by passing the following order:
i) We direct the second respondent to ensure that the election to constitute the third respondent-Corporation is held as expeditiously as possible and results thereof are declared on or before 15th November 2019;
ii) We direct the State Government to render all possible cooperation to the second respondent-the State Election Commission for holding of election to constitute the third respondent-Corporation;
iii) The petition is disposed of with the above observations.
Sd/- CHIEF JUSTICE Sd/- JUDGE LB