IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD WRIT PETITION NO.21239 OF 2019 CONNECTED WITH WRIT PETITION NO.21257 OF 2019, WRIT PETITION NOS.21241-21243 OF 2019 (LB-ELE) IN WRIT PETITION NO.21239 OF 2019:
BETWEEN:
SRI N. P. HEMANTHKUMAR S/O. LATE N. R. PARSHWANATH AGED ABOUT 52 YEARS EX-COUNCILLOR TOWN MUNICIPAL COUNCIL NELAMANGALA BENGALURU RURAL DISTRICT-562 123 RESIDING AT NO.305 SRI SAI SANNIDHI, B. H. ROAD SUBHASHNAGAR , NELAMANGALA BENGALURU URBAN DISTRICT-562 123.
... PETITIONER (BY SRI D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR SRI NAGARAJAPPA A., ADVOCATE) AND:
1. THE PRINCIPAL SECRETARY DEPARTMENT OF URBAN DEVELOPMENT KARNATAKA GOVERNMENT SECRETARIAT VIKASA SOUDHA DR. AMBEDKAR VEEDHI BENGALURU-560 001.
2. ELECTION COMMISSIONER STATE ELECTION COMMISSION 1ST FLOOR, KARNATAKA STATE CO-OPERATIVE MARKETING FEDERATION (BUILDING BEHIND) NO.8, CUNNINGHAM ROAD BENGALURU-560 052.
3. THE DIRECTOR OF MUNICIPAL ADMINISTRATION DR. VISVESVARAIAH TOWER DR. AMBEDKAR VEEDHI BENGALURU-560 001.
4. THE DEPUTY COMMISSIONER OFFICE OF THE DEPUTY COMMISSIONER CHAPPARADAKALLU DEVANAHALLI TALUK BANGALORE RURAL DISTRICT BENGALURU-562 110.
... RESPONDENTS (BY DR. S.V. GIRI KUMAR, AGA FOR R.1, R.3 AND R.4; SRI K.N. PHANEENDRA, SENIOR COUNSEL FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R.2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD:2.5.2019 ISSUED BY THE R-2 MARKED AT ANNEXURE-L IN SO FAR AS THE NELAMANGALA MUNICIPALITY AT ITEM NO.3 OF SL. NO.2 OF BANGALORE RURAL DISTRICT AND ETC IN WRIT PETITION NO.21257 OF 2019:
BETWEEN:
A. PILLAPPA S/O. LATE ACHAPPA AGED ABOUT 53 YEARS NO.5337, SRIRANGA NILAYA THIMSHETTAPPA LAYOUT NELAMANGALA – 562 123 EX-PRESIDENT NELAMANGALA TOWN MUNICIPAL COUNCIL.
... PETITIONER (BY SRI D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR SRI OMKAR KAMBI, ADVOCATE) AND:
1. KARNATAKA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY # 8, 1ST FLOOR, BEHIND KARNATAKA STATE CO-OPERATIVE MARKETING FEDRATION BUILDING., CUNNINGHAM ROAD, BENGALURU – 560052.
2. KARNATAKA STATE ELECTION COMMISSION BY ITS UNDER SECRETARY, # 8, 1STFLOOR, BEHIND KARNATAKA STATE CO-OPERATIVE MARKETING FEDRATION BLDG., CUNNINGHAM ROAD, BENGALURU-560052.
3. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF URBAN DEVELOPMENT VIKAS SOUDHA, BENGALURU-560001.
4. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF PANCHAYAT RAJ & RURAL DEVELOPMENT, M. S. BUILDING, DR. AMBEDKAR ROAD. BENGALURU-560001.
5. NELAMANGALA TOWN MUNICIPAL COUNCIL REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER NELAMANGALA- 562123 BENGALURU RURAL DISTRICT.
6. NELAMANGALA TALUK PANCHAYAT REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER NELAMANGALA – 562123 BENGALURU RURAL DISTRICT.
7. THE DIRECTOR DEPARTMENT OF MUNICIPAL ADMINISTRATION GOVERNMENT OF KARNATAKA 9THFLOOR, VISHWESWARAIAH TOWER DR. B. R. AMBEDKAR VEEDHI BENGALURU-560001.
8. THE DEPUTY COMMISSIONER BENGALURU RURAL DISTRICT BENGALURU – 560002.
… RESPONDENTS (BY DR. S.V. GIRI KUMAR, AGA FOR R.3, R.4, R7 AND R.8; SRI K.N. PHANEENDRA, SENIOR COUNSEL FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R.1 AND R.2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:2.5.2019 ISSUED BY THE R-2 AS PER ANNEXURE-A IN SO FAR AS IT DIRECTS CONDUCT OF ELECTION TO NELEMANGALA TOWN MUNICIPAL COUNCIL AS PER SL NO.2[3] OF THE ANNEXURE APPENDED TO THE ORDER AS NOTIFIED AND ETC.
IN WRIT PETITION NOS.21241-21243 OF 2019 BETWEEN:
1. SRI UMESH M. D. S/O. DYAVAPPA AGED ABOUT 55 YEARS R/AT SAGAR ROAD, SORABA – 560080 SHIVAMOGGA.
2. SRI JAGADEESH S/O. VEERABHADRAPPA AGED MAJOR KANAKERE, SORABA TOWN – 560080 SHIMOGA DISTRICT.
3. SRI MADHURAYA SETTY S/O. GOPALAKRISHNA AGED MAJOR CHIKKAKUPPE, SORABA TOWN – 560080 SHIMOGA DISTRICT.
... PETITIONERS (BY SRI M. SHIVAPRAKAASH, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP. BY THE CHIEF SECRETARY VIDHANA SOUDHA BENGALURU – 560001.
2. THE CHIEF ELECTION COMMISSION LOCAL BODIES STATE OF KARNATAKA CUNNINGHAM ROAD, BENGALURU – 560001 3. THE DIRECTOR OF MUNICIPALITIES STATE OF KARNATAKA V. V. TOWER, AMBEDKAR VEEDHI ROAD, BENGALURU – 560 001.
4. THE PRINCIPAL SECRETARY URBAN DEVELOPMENT STATE OF KARNATAKA M. S. BUILDING, BENGALURU – 560 001.
5. THE DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT 4SHIVAMOGGA – 560 080 6. THE CHIEF OFFICER PATTANA PANCHAYATH SORABA – 560 080 SHIVAMOGGA DISTRICT.
… RESPONDENTS (BY DR. S.V. GIRI KUMAR, AGA FOR R.1, R.3-R.5; SRI K.N. PHANEENDRA, SENIOR COUNSEL FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R.2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING INTER ALIA FOR CONSIDERATION OF THEIR MEMORANDUM OF REPRESENTATIONS DATED 03.05.2019 AND 06.05.2019 AND FOR QUASHING OF THE NOTIFICATION DATED 02-05-2019 IN NO.RACH.AA.76:EUB: 2019 AND FOR OTHER CONSEQUENTIAL RELIEF/S.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 10.05.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THIS COURT PASSED THE FOLLOWING:
ORDER This Court on 08/05/2019, granted interim orders deferring the elections to the Nelamangala Town Municipality and Pattana Grama Panchayat for a period of four weeks upon hearing Sri. Nanjunda Reddy, the learned Senior Counsel for the petitioners. But, today, on the mention being made by the learned counsel for the State Election Commission, the petitions were directed to be listed for consideration of the application IA No. 2/2019 filed for vacating the interim Order dated 08/05/2019. However, Sri. Nanjunda Reddy, the learned Senior counsel for the petitioners in W.P. No. 21257/2019, Sri. A Nagarajappa, the learned counsel for the petitioner in. W.P. No. 21239/2019, Sri. M Shivprakash, the learned Counsel for the petitioners in W.P. No. 21241-21243/2019, Sri. K N Phanindra, the learned Senior Counsel for the State Election Commission, and the learned Additional Government Advocate for the other contesting respondents consent for final disposal of the petitions, and they are accordingly heard after dispensation of notice to the other respondents.
2. The petitioner in WP No. 21239/2019 has asserted that he was elected a councillor to the Nelamangala Town Municipal Council in the year 2014 from Ward No. 20, and he was also previously elected a councillor of this Council. The petitioner is interested in the conversion of the Nelamangala Town Municipal Council into a City Municipal Council because of the increase in population. He has taken personal interest in this regard. Even the adjacent Grama Panchayats have resolved for their inclusion into the proposed City Municipal Council as is obvious from the enclosed annexures. The proposal for conversion of the Nelamangala Town Municipal Council is made for the first time in the year 2015. The Director of Municipal Administration vide the Communication dated 03.08.2018 has forwarded to the State Government the recommendation for conversion of Nelamangala Town Municipal Council into a City Municipal Council including the adjacent Grama Panchayats. This Communication dated 03.08.2018 is preceded by the appropriate Resolutions and correspondences. On 03.05.2019, the State Government has written to the State Election Commission bringing to its notice that the State Cabinet on 25.02.2019, has approved the upgradation of Nelamangala Town Municipal Council and the concerned file was also placed before his Excellency, the Governor for necessary Notification as required under section 9 of the Karnataka Municipalities Act, 1964 (for short, 'the Municipalities Act'). However, His Excellency, the Governor has returned the file for resubmission after the code of conduct, which is in force because of the ongoing parliamentary elections, ceases to operate. As such, the State Election Commission should consider holding elections to the upgraded/ converted City Municipal Council after the exercise of delimitation of the wards and reservation is completed pursuant to the notification to be issued for such upgradation/conversion. However, the State Election Commission has issued the impugned Notification dated 02.05.2019 to hold elections to municipalities, including the Nelamangala Town Municipal Council, specifying the date for elections. The impugned Notification dated 02.05.2019 is without application of mind, and would holding elections, pursuant thereto, would be a futile exercise.
3. The petitioner in WP No. 21257/2019 has also asserted that he has been elected for two terms as a councillor of Nelamangala Town Municipal Council, and he has been the President of the said Municipal Council between 2007 and 2013 as well as between 2013 and 2019. As such, the petitioner is interested in the functioning of the Municipal Council. The petitioner, while asserting facts similar to the assertions in the earlier writ petition in WP No. 21239/2019, has submitted that the transitional area of Nelamangala was specified to be the Town Panchayat of Nelamangala in the year 1996 under the provisions of the Municipalities Act, and thereafter, the transitional area of Nelamangala is specified to be a Smaller Urban Area as per the provisions of section 3 of the Municipalities Act. With such specification, the Nelamangala Town Panchayat is constituted into Nelamangala Town Municipal Council. The latest term of the Council has ended as of 15.03.2019, and with the expiry of the term of the Council, an Administrator is appointed by the State Government vide the order dated 12.03.2019.
4. Even this petitioner, as in the earlier petition, has urged that with the upgradation of the Nelamangala Town Municipal Council into City Municipal Council being at the cusp, the conduct of elections to the Nelamangala Town Municipal Council would be a futile exercise inasmuch as elections will have to be conducted to the upgraded City Municipal Council (immediately after the appropriate notifications in this regard) as the representatives of the Nelamangala Town Municipal Council, being smaller in number, would not adequately represent the upgraded City Municipal Council because of the increase in the number of area. The process of conversion of a Town Municipal Council into a City Municipal Council would essentially involve a hiatus, an unavoidable necessity. Therefore, the mandate under Article 243 - U of the Constitution of India cannot be invoked, and the mandate thereunder would apply only when a particular kind of Municipality comes to an end and a similar successor Municipality should take over. The State Election Commission cannot insist upon holding elections to the Nelamangala Town Municipal Council because of the provisions of Article 243 - U of the Constitution of India. In any event, the term of the Nelamangala Town Municipal Council having ended as of 15.03.2019, the State Government has already appointed an Administrator to oversee the affairs of the Nelamangala Town Municipal Council, and in law, the Administrator can hold office for a period of 6 months. The entire exercise of upgradation of the Nelamangala Town Municipal Council into a City Municipal Council with the necessary exercise of delimitation of wards and reservation could be completed within such six months. The conduct of elections, when things stand at the stage, would involve avoidable wastage of substantial expenditure of public money and time. The petitioner has also asserted that the process of election insofar as Nelamangala Town Municipal Council has not had been commenced because the competent authority under the Municipalities Act, the concerned Deputy Commissioner, is yet to issue the requisite notification under the Municipalities Act and the Rules framed thereunder.
5. The third writ petition in WP No. 21241- 21243/2019 is by the petitioners, who are residents of Soraba Town and Taluk. They have presented their petitions contending that the Pattana Panchayat of Soraba has passed necessary resolution for conversion of Pattana Panchayat of Soraba into a Smaller Urban Area, a Town Municipality, in the year 2017 as provided under the provisions of the Municipalities Act. The adjoining Grama Panchayats have also passed necessary resolutions in this regard. After the requisite census and other processes, the Deputy Commissioner of Shivamoga has recommended upgradation of Pattana Panchayat of Soraba to a Town Municipality. The Director of Municipalities has also submitted a report in this regard to the State Government on 16.1.2019. The State Cabinet is yet to decide on the recommendation/proposal. But, the upgradation of Pattana Panchayat of Soraba into a Town Municipality is on the anvil. The State Election Commission has also been appraised of the progress made as regards the upgradation of Pattana Panchayat of Soraba into a Town Municipality. Despite the same, the State Election Commission has issued the impugned publication/notification as per annexure P, P1 and P2. The grounds urged in support of the prayer against the impugned publication/notification are similar to the grounds in the earlier writ petitions.
6. The learned senior counsel on either side do not dispute the material facts, but have made divergent submissions on specific issues that could flow from the undisputed facts. Therefore, it can be taken that the undisputed facts would be that the recommendations for the conversion of the Nelamangala Town Municipality with the appropriate resolutions by the concerned grama panchayats, were pending with the State Government from the year 2015. The State Government vide it’s decision dated 25.2.2019, has accepted the recommendations and the resolution to convert the Nelamangala Town Municipal Council, with certain other Grama Panchayats, into a City Municipal Council. The decision to convert the Nelamangala Town Municipal Council was placed before His Excellency, the Governor for appropriate approval as contemplated under the provisions of the Municipalities Act. But, because of the ongoing parliamentary elections and the consequential code of conduct being in vogue, the necessary notification is not yet issued. The State Government has written to the State Election Commission requesting that the municipal elections insofar as Nelamangala Town Municipal Council be deferred. The State Election Commission has issued Notification dated 02/05/2019 to Deputy Commissioners across the State to notify elections to about 68 local bodies (including the Nelamangala Town Municipal Council) as per the Calendar of Events finalised by it. Insofar as Pattana Panchayat of Soraba (which is subject matter of petition in WP No. 21241- 21243) similar submissions are made except that the necessary decision is yet to be taken even by the State Cabinet.
7. Sri. Nanjunda Reddy, the learned Senior Counsel for the petitioners in W.P. No. 21257/2019 and W.P. No. 21239/2019, submits that in the aforesaid undisputed circumstances as regards the Nelamangala Town Municipal Council could be called transitionary. The State Government has decided to upgrade/convert the Nelamangala Town Municipal Council into a City Municipal Council after all the necessary reports and resolutions, and what remains to be completed are issuance of appropriate notification under the Municipalities Act and delimitation of the wards and the reservation of wards, and these exercises are hindered because of the ongoing parliamentary elections. However, these exercises can be completed within a period of six months from the date of the appointment of an Administrator. As such there is hiatus, and when there is a hiatus as aforesaid, the State Election Commission cannot contend that the elections to the existing Municipal Bodies must be compulsorily held. The learned Senior Counsel relies upon the decision of the Hon’ble Supreme Court in State of Maharashtra and others vs. Jalagoan Municipal Council1 in support of this proposition. The learned Senior Counsel relies upon paragraph 21 which read as follows:
"21. Having heard the learned counsel for the parties at length on this aspect we are of the opinion that the said hiatus is an unavoidable event which must take place in the process of conversion of Municipal Council into a Municipal Corporation. Reliance on Article 243 - U by the learned counsel for the respondents in this context is misconceived. The use of expression 'a municipality' in sub- Article (3) of Article 243 - U in the context and in the setting in which it is employed suggests and means the duration of the same type of municipality coming to an end and the same type of successor municipality taking 1 (2003) 9 SCC 731 over as a consequence of term of the previous municipality coming to an end. Article 243 - U cannot be applied to a case where the area of one description is converted into an area of another description and one description of municipality is ceased by constituting another municipality of a better description. Article 243 - U(3) cannot be pressed into service to base a submission on that an election to constitute a municipal corporation is required to be completed before the expiry of duration of a municipal council."
8. The learned senior counsel, elaborating on the submissions as regards the transitionary circumstances referred to above, submits that once the notification under the Municipalities Act is issued for upgradation/ conversion of the subject local bodies, there would be a flux because such upgraded local body, which would have to indisputably include certain Grama Panchayats that have also passed necessary resolutions for upgradation/ conversion including them, would have either lesser representatives or have no representatives from such Grama Panchayats. As such, the Council even if constituted after the proposed elections, will have to be dissolved rendering the entire exercise of holding elections to the subject local bodies an exercise in futility. Therefore, it would be just and reasonable to defer elections to the subject local bodies until the Notification for their upgradation/ conversion is issued and the necessary steps are taken for holding elections to the upgraded/ converted local bodies in accordance with law.
9. The learned Senior Counsel for the petitioners insofar as the bar to interfere by courts in electoral matters under Article 243 - ZG of the Constitution of India, was unequivocal in stating that the bar becomes operational with the commencement of the election process. The election process commences with the notification of election by the concerned Deputy Commissioner in Form No. 1 as provided under Rule 8 of the Karnataka Municipalities (Election of Councillors) Rules, 1977 - for short, the Municipalities Rules. The Municipalities Rules have been made in exercise of the powers conferred by section 38 and section 323 of the Municipalities Act. The Deputy Commissioner is yet to notify the intended election to the Nelamangala Town Municipal Council in Form No. 1 as required under rule 8 of the Municipalities Rules. As such, there is no bar for interference by this Court which would be wholly justified in the facts and circumstances of the case.
10. The learned senior counsel relied upon the following two decisions of the Hon'ble Supreme Court in support of the proposition that the question whether election process is commenced will have to be examined in the facts and circumstances of a given case and that the election process commences with the date of notification of the election by the competent Authority.
(1) Lakshmi Charan Sen and others v. AKM Hassan Uzzaman2 wherein it is held as follows:
"We have expressed the view that preparation and revision of electoral rolls is a continuous process, not commenced with any particular election. It may be difficult, consistently with that view, to hold that preparation and revision of electoral rolls is a part of the 'election' within the meaning of article 329 (b). Perhaps, as stated in Halsbury in the passage extracted in Ponnuswami, the facts of each individual case may have to be considered for determining the question whether any particular stage can be said to be a part of the election process in that case. In that event, it would be difficult to formulate a proposition which will apply to all cases alike."3.
2 (1985) 4 SCC 689 3 Paragraph 28 (2) Election Commission Of India Through Sec v. Ashok Kumar and others4 wherein it is held as follows:
'(1) if an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or retracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections '.
11. Sri. M P Shivprakash, the learned counsel for the petitioners in WP No. 21241-21243/2019 insofar as the conduct of elections to Patanna Panchayat of Soraba adopts the submissions made by the learned Senior Counsel for the petitioners in the other two writ 4 (2000) 8 SCC 216 petitions. As such, the merits of the petitions in WP No. 21241-21243/2019 will also have to be adjudged on the basis of the submissions made by the learned Senior Counsel in support of the other two writ petitions.
12. Sri. K N Phanindra, the learned Senior Counsel for the State Election Commission (without disputing the factual matrix asserted by the petitioners, as aforesaid) controverts the submission that the Nelamangala Town Municipal Council as well as the Pattana Panchayat of Soraba are at the cusp of being upgraded/converted into City Municipal Council and Town Municipal Council respectively, and there is a consequential hiatus. The learned Senior counsel contends that the process of election for the local bodies, including the Nelamangala Town Municipal Council and Pattana Panchayat of Soraba commenced much earlier than date of the impugned Notification on 02.5.2019. The election process commenced with the finalisation of reservation of constituencies, and in fact, the State Government issued appropriate notification in this regard only after a direction by a Division Bench of this Court. The State Government, at that point of time, did not place on record that it proposed to upgrade/convert the aforesaid local bodies.
13. The learned senior counsel elaborated that the proposal for upgrading/converting the Nelamangala Town Municipal Council was pending, even according to the petitioners, from the 2015, and insofar as Pattana Panchayat of Soraba, the recommendation was only in the year 2017. While in the case of the former the State Cabinet has decided on the upgradation/conversion into a City Municipal Council on 25.02.2019, in the case of the latter, even the necessary decision is not taken. For the upgradation/conversion of the subject local bodies, appropriate notification under section 9 of the Municipalities Act will have to be issued after publication of the draft notification (proposal) inviting objections from all persons, who could entertain any objection to the proposal. The necessary final Notification should be issued after considering the objections submitted. Thereafter, the necessary process of delimitation of wards and reservation will have to be undertaken, and again after publication of necessary proposal and consideration of objections submitted in that regard. These are elaborate processes and cannot be completed within a short period of time. This is manifest even in the time taken by the State Government to decide on even the subject recommendations pending from 2015 and 2017 respectively. Therefore, the submission that the subject local bodies are at the cusp and there is a consequential hiatus is contrived.
14. Further, the learned Senior Counsel submitted that the decision of the Hon'ble Supreme Court in State of Maharashtra v. Jalagoan Municipal Council supra would not be applicable to the present case. In fact, in the case on hand before the Hon'ble Supreme Court, as recorded in paragraph 16, the elections for the Jalagoan Municipal Council, which was proposed to be upgraded/ converted into a City Corporation, were conducted and the newly constituted Municipal Council assumed office when the questions as regards the issuance of notifications for cessation of the subject Municipal Area as a Smaller Urban Area and specifying such area as a Larger Urban Area were pending consideration. On the other hand, the learned Senior counsel relied upon the decision of the Hon'ble Supreme Court in Kishan Singh Tomar versus Municipal Corporation of the City of Ahmedabad and others5, to justify the issuance of the impugned Notification dated 02.05.2019, and drew the attention of this Court to paragraph 14 which reads as under:
"14. So, in any case, the duration of the municipalities fixed as 5 years from the date of its first meeting and no longer. It is incumbent upon the Election Commission and other authorities to carry out the mandate of the Constitution and to see that a new municipality is constituted in time and elections to the municipality are concluded before the expiry of its duration of 5 years as specified in clause (1) of Article 243 - U."
15. As regards the submissions on behalf of the 5 (2006) 8 SCC Page 352 petitioners that the election process insofar as Nelamangala Town Municipal Council and Pattana Panchayat of Soraba is not commenced because the concerned Deputy Commissioner has not issued necessary Notification under Rule 8 of the Municipalities Rules in Form No. 1, the learned Senior Counsel for the State Election Commission contended that there is a fallacy both in calling the Notification dated 02.05.2019 as a communication/letter and in contending that the election process is not commenced with the issuance of the Notification dated 02.05.2019. The learned Senior counsel relied upon the provisions of Article 243 - ZA of the Constitution of India and contended that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to the Municipalities vest with the State Election Commission in terms of Article 243 - ZA (1), and every Law made by the Legislature of a state in relation to, or in connection with, elections to the Municipalities will be subject to the superintendence, direction and control of the State Election Commission. Therefore, the provisions of section 38 (1) of the Municipalities Act, which deal with the Control of elections to the Municipalities in the state of Karnataka, also stipulate that the superintendence, direction and control of conduct of all elections to the Municipal Council shall be vested in the State Election Commission. The State Government may, but subject to the aforesaid superintendence, direction and control of the State Election Commission, make rules provided for under section 38 (2) (a) to (l) of the Municipalities Act. The Rule 8 of the Municipalities Rules, made in exercise of the powers conferred under section 38 (2) of the Municipalities Act also stipulate that the Deputy Commissioner shall, with the approval of the State election commission, notify in Form 1 the intended election. In the scheme as aforesaid, it would be totally impermissible to contend that the election process is not commenced because the concerned Deputy Commissioner has not notified the intended elections in the prescribed Form No. 1 of the Municipalities Rules despite the issuance of the impugned notification dated 02.05.2019 by the State Election Commission.
16. The learned Senior counsel contends that once the election process is commenced, the bar under Article 243 - ZA of the Constitution of India would come into operation, and no order, much less an ex parte interim order, which interrupts or obstructs or delays the progress of the election proceedings, would be permissible. The learned senior counsel relies upon the following decisions, in addition to the aforesaid two decisions of the Hon'ble Supreme Court in the Election Commission of India through Sec v. Ashok Kumar and others and Lakshmi Charan Sen and others v. AKM Hassan Uzzaman and others. The decisions relied upon by the learned senior counsel in this regard are (i) Prof.
B.K. Chandrashekhar and others v State of Karnataka6, (ii) Karnataka State Election Commission v. Vinod7, (iii) Mr CK Ramamoorthy and another v. State Election Commission8, (iv) B Krishnaiah and another v. State Election Commission, Andhra Pradesh and others9.
17. In rejoinder, Sri Nanjunda Reddy, the learned senior counsel, on behalf of the petitioners submitted that there cannot be any quarrel with the proposition that once the election process is commenced, there cannot be any judicial interference which either obstructs or delays or interferes with the election process, and the petitioners are to be non-
6 ILR 1999 KAR 2513 7 2018 SCC Online 2899 8 ILR 2015 Karnataka 2724 9 AIR 1996 Supreme Court 1595 suited. However, the petitioners are before this Court on the twin pedestal that the election process is not commenced because the concerned competent authorities, the concerned Deputy Commissioners, have not issued the necessary Notification in Form No. 1 under Rule 8 of the Municipalities Rules, and that when there is a hiatus, as in the present case, the State Election Commission cannot insist on holding elections on the ground that the term of the existing Municipal Council has expired. The circumstances that avail the petitioners in the present case, did not arise for consideration of the Hon'ble Courts in the different decisions relied upon by the learned senior counsel for the State Election Commission.
18. In the light of the rival submissions, the questions that arise for consideration are:
(a) Whether, in the factual matrix as of today as regards upgrading/ converting the Nelamangala Town Municipal Council into a City Municipal Council and the Pattana Panchayat of Sorabha into a Town Muncipality, it could be said that there is a hiatus justifying deferment of elections to these Local Bodies.
(b) Whether it could be said that the election process for the Nelamangala Town Municipality and Pattana Panchayat of Sorabha is commenced, and therefore, the bar under Article 243 - ZG of the Constitution of India would apply.
Both these questions, in the considered opinion of this court, will have to be answered against the petitioners.
19. In Kishen Singh Tomar supra, the Constitutional Bench, while considering the significance of Article 243 - U of the Constitution, has declared that it is incumbent upon the State Election Commission and the other authorities to carry out the mandate of the Constitution and to see that a new municipality is constituted in time and elections to the municipality are conducted before the expiry of its duration of five years as specified in clause (1) of article 243 - U and that the State Election Commission shall not put forward any excuse based on unreasonable grounds nor the State Election Commission shall yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time. Insofar as certain circumstances that perhaps could justify not holding the elections to a municipality before the expiry of five years as specified in clause (1) of article 243 - U of the Constitution, the Hon'ble Supreme Court has held as follows in paragraph 21:
"It is true that there may be certain man-made calamities, such as rioting or breaking down of law and order, or natural calamities which could distract the authorities from holding elections to the municipality, but they are exceptional circumstances and under no (sic other) circumstance would the Commission be justified in delaying the process of election after consulting the State government and other authorities. But that should be an exceptional circumstance and shall not be a regular feature to extend the duration of the municipality. Going by the provisions contained in article 243 - U, it is clear that the period of five years fixed thereunder to constitute the municipality is mandatory in nature and has to be followed in all respects. It is only when the municipality is dissolved for any other reason and a reminder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the municipality for such period.
22. In our opinion the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution "
20. Thus, the State Election Commission is under a constitutional mandate to hold elections to the municipalities within the time prescribed under article 243 - U of the Constitution except under very exceptional circumstances; though the earlier decision in State of Maharashtra and others v. Jalagoan Municipal Council and others supra has not been considered by the Constitutional Bench in Kishen Singh Tomar supra, the question whether a hiatus, when a municipality is being upgraded/converted into a larger local body10, could justify judicial interference for deferment of the elections could perhaps be considered in an appropriate case. But, in the present case the undisputed facts are that consequent to the State Cabinet's decision to upgrade the Nelamangala Town Municipal Council, appropriate notification under section 9 of the Municipalities Act is yet to be issued with further exercise to be undertaken as regards delimitation of the wards and reservation of the wards in accordance with the provisions of the Municipalities Act. Further, the term of the Nelamangala Town Municipal Council has expired as of 15.03.2019, and an Administrator is appointed for a period of six months from 15.03.2019. It is undisputed that the term of the Administrator cannot be extended in normal circumstances beyond six months from the date of 10 As considered by the Hon'ble Supreme Court in State of Maharashtra and others vs. Jalagaon Municipal Council and other appointment. It is very difficult for any authority to state with any certainty that the entire exercise of issuance of notification under Section 9 of the Municipalities Act and the subsequent exercise of delimitation of wards and reservation of wards, which would also require publication of draft Notifications and consider of objections before issuance of the Notification, would be completed within the term for which the administrator is appointed and in fact, there is no such statement by the State Government in its Communication dated 03.05.2019 to the State Election Commission. Therefore, the learned Senior Counsel for the State Election Commission is justified in asserting that these exercises cannot be completed within the available term of the Administrator appointed on 12.03.2019. The situation insofar as Pattana Panchayat of Soraba is even difficult as the State Government has not even decided on the recommendation/report for upgradation/conversion into Municipality. In these circumstances, it cannot be reasonably concluded that either the Nelamangala Town Municipal Council or the Pattana Panchayat of Soraba is at the cusp of upgradation/conversion into a City Municipal Council and a Town Municipal Council respectively and there is an unavoidable hiatus, a short break between two stages. As such, while answering the first question in the negative, it is concluded that there is no justification for deferment of the elections to the subject local bodies.
21. The canvass that the election process has not commenced insofar as the subject local bodies viz., Nelamangala Town Municipal Council and the Pattana Panchayat of Soraba because the respective Deputy Commissioners have not notified the election in Form No. 1 under Rule 8 of the Municipalities Rules will have to be examined from the prism of the provisions of Article 243 - ZA of the Constitution, Section 38 (1) of the Municipalities Act and Rule 8 of the Municipalities Rules and the decision of the Constitutional Bench in Kishan Singh Tomar supra.
22. The provisions of Article 243 - ZA of the Constitution are categorical in that not only the superintendence, direction and control of the preparation of the electoral rolls for all the elections to the municipalities, even the conduct of such elections shall vest with the State Election Commission. The provisions of section 38 (1) of the Municipalities Act are also similarly categorical inasmuch as, in a verbatim repetition of the provisions of Article 243 - ZA of the Constitution, state that the superintendence, direction and control of even the conduct of all elections to the Municipal Council shall vest with the State Election Commission. Even Rule 8 of the Municipalities Rules, which is relied upon by the learned senior counsel for the petitioners, is categorical, as it should be, that the Deputy Commissioner shall, 'with the approval of the state election commission', notify in Form No. 1 the intended elections. The Hon'ble Supreme Court in Kishan Singh Tomar, while declaring that the constitutional mandate is with the State Election Commission to hold, without any delay, elections to the Municipalities within the time contemplated under Article 243 - U of the Constitution of India, has also declared that the law made by the Parliament or the State Legislatures cannot encroach upon the plenary powers of the State Election Commission.
23. There is no disharmony between the constitutional mandate under Article 243 - ZA of the Constitution of India and the provisions of Section 38 of the Municipalities Act or Rule 8 of the Municipalities Rules, and in fact there is nothing in Section 38 of the Municipalities Act or Rule 8 of the Municipalities Rules to indicate that that either the State Legislature or the State Government intended to vest in the Deputy Commissioners a power that would be inconsonance with the absolute mandate in the State Election Commission, or the power to act in any manner that would dilute this mandate. The consistent scheme, as is obvious from the aforesaid provisions, is that the superintendence, direction and control for the conduct of elections to the Municipalities vest with the State Election Commission, and the Deputy Commissioner shall with the approval of the State Election Commission, notify the intended election in the prescribed Form. In fact, though the impugned Notification dated 02.05.2019 does not specify the provisions under which it is issued, the same is traceable to the above provisions. It therefore follows that it is imperative for the concerned Deputy Commissioners to adhere to the terms of the impugned Notification.
24. The Hon'ble Supreme Court in Election Commission of India Through Secretary v. Ashok Kumar and others Supra, in the light of the Constitutional Bench decision in Lakshmi Charan Sen supra and other decisions, has held that the term 'election' could widely be interpreted so as to include all steps and the entire proceedings commencing from the date of notification of election till the date of declaration of result. It would suffice, in the present case, to consider that the State Election Commission vide the impugned notification dated 02.05.2019 in exercise of the constitutional mandate, and the provisions under Section 38 (1) of the Municipalities Act, and in a manner of granting approval under Rule 8 of the Municipalities Rules, has specified inter alia the date upon which the election to the municipalities shall be held imposing Code of Conduct much before the date of the present petitions.
Therefore, it shall follow that the election process is commenced with the issuance of the impugned notification dated 02.05.2019 by the State Election Commission, and even before the date of the petitions. As such, in the considered opinion of this Court no judicial interference would be permissible, and consequentially the writ petitions are liable to be dismissed. Accordingly, the second question is also answered.
In the light of the above discussion, the writ petitions are dismissed, and in view of the dismissal of the writ petitions, the pending applications also stand disposed of.
No costs.
Sd/- JUDGE Sa/-