IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH 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. 53244/2018 (LB-RES-PIL) BETWEEN 1.SRI NIGEL ALBUQUERQUE S/O LATE A.J.G. ALBUQUERQUE AGED ABOUT 45 YEARS R/AT ARCHIL, PAIS GARDENS BEJAI, MANGALURU-575 004 2.SRI AJOY D’SILVA S/O LATE BENEDICT D’SILVA AGED ABOUT 44 YEARS R/AT JASMINE GARDENS ANEGUNDI ROAD, BEJAI MANGALURU-575 004 3.SRI NARENDRA KUMAR S/O LATE KASHINATH PANDEY AGED ABOUT 54 YEARS R/AT NO.9, 6TH CROSS SINGAPURA LAYOUT VIDYARANYAPURA POST BENGALURU-560 097 4.SMT. KATHYAYINI CHAMARAJ W/O B H CHAMARAJ AGED ABOUT 68 YEARS R/AT APT.001, HM WIMBERLY, 6 BERLIE STREET CROSS LANGFORD TOWN BENGALURU-560025 ... PETITIONERS (BY SRI RAJASHEKAR S, ADVOCATE) AND 1.THE STATE OF KARNATAKA REP BY ITS CHIEF SECRETARY TO THE GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BENGALURU-560 001 2.URBAN DEVELOPMENT DEPARTMENT REP BY ITS SECRETARY TO THE GOVERNMENT OF KARNATAKA VIKASA SOUDHA, BENGALURU-560 001 3.THE CORPORATION OF THE CITY OF MANGALURU REP BY ITS COMMISSIONER M.G.ROAD, LALBAGH MANGALURU-575 003 4.DIRECTORATE OF MUNICIPAL ADMINISTRATION REP BY ITS DIRECTOR 9TH FLOOR & 10TH FLOOR VISHVESHWARIAH TOWER DR. B.R.AMBEDKAR VEEDHI BENGALURU-560 001 ... RESPONDENTS (BY SRI P B ACHAPPA, AGA FOR R-1, 2 & 4;
SRI S VISHWAJITH SHETTY, ADVOCATE FOR R-3) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE DIRECTIONS TO RESPONDENT NO.3 HEREIN, BY WAY OF WRIT OF MANDAMUS, TO ACT ON THE REPRESENTATION DATED 13.06.2017 MADE TO RESPONDENT NOS.2 AND 3 HEREIN AT ANNEXURE-A AND REPRESENTATION DATED 16.11.2017 MADE TO RESPONDENT NOS.2 AND 3 HEREIN AT ANNEXURE-B BY TAKING APPROPRIATE STEPS IN THE MATTER OF FORMATION OF AREA SABHAS AND WARD COMMITTEES IN THE MANGALURU CITY CORPORATION WITHIN A TIMEFRAME TO BE FIXED BY THIS COURT AND TO REPORT COMPLIANCE AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER The grievance made in this petition under Article 226 of the Constitution of India in the nature of a public interest litigation is that the third respondent –Corporation, which is constituted under the Karnataka Municipal Corporations Act, 1976 (for short ‘the said Act’), has failed to constitute Area Sabhas and Ward Committees.
2. The learned counsel appearing for the third respondent states that the term of the elected Councillors came to an end on 12th March 2019 and from 13th March 2019 onwards, the third respondent is administered by an Administrator appointed.
3. We have perused the provisions of Chapter IIIA. Section 13C contains a mandatory provision that there shall be an Area Sabha for each area. Under Section 13D, it is provided that each area shall have an Area Sabha Representative who shall be nominated by the Corporation on the recommendation of the Councillor of the particular ward. Section 13E provides that the term of office of an Area Sabha Representative shall be co- terminus with that of the Councillor of the Corporation concerned.
4. Under Section 13H, there is a mandatory provision that there shall be a Ward Committee for each ward in the Corporation. The constitution of Ward Committee is laid down in Section 13H. As per clause (a) of sub-section (2) of Section 13H, the Councillor of the Corporation representing the concerned Ward shall be the Chairperson of the Ward Committee and as per clause (b), ten other members are required to be nominated by the Corporation. On a conjoint reading of Clause (a) and Clause (b) of sub-section (2) and sub-section (10) of Section 13H, it is apparent that the term of the Ward Committee is co-terminus with the term of the Municipal Corporation.
5. Under Section 13G of the said Act, important functions and duties have been entrusted to Area Sabhas. Under Section 13I, the mandatory functions of the Ward Committees have been laid down.
6. On a plain reading of the provisions of Section 13C and Section 13H, it is apparent that both the provisions are mandatory in nature inasmuch as apart from the use of the word ‘shall’, important functions and duties have been assigned to the Area Sabhas as well as to the Ward Committees. Article 243S of the Constitution of India mandates that Ward Committees shall be constituted at ward level. In fact, Clause (4) of Article 243S provides that a member representing the concerned ward shall be the Chairperson of the concerned Ward Committee.
7. For constituting the Area Sabha, the State Government has to exercise power under Section 13B for determination of areas. If said power is not yet exercised, the Government shall do so immediately so that after the General Ward Elections of the Corporation, the Area Sabhas can be constituted.
8. As of today, the term of the Corporation has expired and there are no longer elected Councillors. Unless General Ward Elections are held and Corporation is constituted in terms of Section 7 of the said Act, Area Sabhas and Ward Committees cannot be formed. However, immediately after the declaration of results of the General Ward Elections, steps will have to be taken for formation of Area Sabhas and Ward Committees.
9. Accordingly, we pass the following order:
(i) If the State Government has not determined the areas as contemplated by Section 13B of the said Act in relation to the Wards of the third respondent, the State Government shall complete the said exercise before the General Ward Elections are held;
(ii) As soon as the General Ward Elections are held and there is a constitution of the Corporation as per Section 7 of the said Act, immediate steps shall be taken for constitution of Area Sabhas and Ward Committees in terms of Section 13C and Section 13H respectively of the said Act;
(iii) The petition is disposed of with the above directions.
Sd/- CHIEF JUSTICE bkv Sd/- JUDGE