IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR WRIT APPEALS No.318/2019 & 746-752/2019 (LB-ELE) C/w WRIT APPEALS No.97-99/2019 (LB-RES) WRIT APPEALS No.3200-3205/2018(LB-RES) WRIT APPEAL No.146/2019 (LB-ELE) AND WRIT APPEAL No.147/2019 (LB-ELE) WA No.318/2019 BETWEEN:
THE STATE OF KARNATAKA REP. BY ITS SECRETARY MINISTRY OF URBAN DEVELOPMENT VIKASA SOUDHA BENGALURU-560 001 ... APPELLANT [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA] AND:
1. MR. RAVINDRA NAYAK S/O LATE V. ANANDA NAYAK AGED ABOUT 42 YEARS R/O OM NILAYA, NEAR SRI ANANTHA PADMANABHA TEMPLE KUDUPUR POST AND VILLAGE MANGALURU-575 028 2. KARNATAKA STATE ELECTION COMMISSION NO.8, 1ST FLOOR, KSMCF BUILDING ANNEXE CUNNINGHAM ROAD BENGALURU-560 052 REP. BY ITS COMMISSIONER 3. MANGALORE CITY CORPORATION BALLALBAGH, MANGALORE-575 003 REP. BY ITS COMMISSIONER 4. SMT KAVITHA SANIL W/O ARUN MAJOR, CORPORATOR, WARD NO.19 MANGALURU CITY CORPORATION SAGAR RESIDENCY NEAR MORE BEJAI, KODIALBAIL MANGALURU-575 003 5. SRI MAHABALA MARLA S/O RAGHU MARLA MAJOR, CORPORATOR, WARD NO.22 MANGALURU CITY CORPORATION R/A SUMITH APARTMENT MARY HILL, KONCHADY POST MANGALURU-575 008 ... RESPONDENTS [BY SHRI. M.J. ABHISHEK MARLA ADVOCATE FOR R1 (IN WA 318/2019 IN WP NO.44499/2018); SHRI. K.N. PHANINDRA, SENIOR ADVOCATE FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R2 (IN WP NO.44499/2018);
SHRI. VISHWAJITH SHETTY, ADVOCATE FOR R3 (IN WP NO.44499/2018);
SHRI. S. RAJASHEKAR, ADVOCATE FOR R4 (IN WP NO.44499/2018) R5- SERVED (IN W.A. 318/2019)] WAs No.746-749/2019 BETWEEN:
1. THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT M.S.BUILDING, BENGALURU-560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY 2. THE DEPUTY COMMISSIONER MANGALURU-575 001 ... APPELLANTS [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA] AND:
1. P. JAYENDRA KOTIAN S/O LATE P. PUDDU AGED ABOUT 70 YEARS, RESIDING OPP. DOOMAPPA COMPOUND MANGALURU-575 001 2. DAYANANDA SHETTY S/O LATE SEETHARAMA SHETTY AGED ABOUT 65 YEARS ”SABINA APARTMENT” OPP.CITY HOSPITAL, B3-B4 KADRI, MANGALURU-575 001 3. NAVEEN SHENOY S/O GOPALAKRISHNA SHENOY AGED ABOUT 32 YEARS NANDA GOKULA, NAGABRAHMA ROAD BIKARNAKATTE, MANGALURU-575 005 4. GANESH M.P S/O LATE KUTTAPPA M.P AGED ABOUT 49 YEARS, 1-83/4, “DATHVAYINI NILAYA” ANGARAMAJALU, GORIGUDDA MANGALURU-575 002 5. THE KARNATAKA ELECTION COMMISSION OF INDIA, PARK HOUSE BENGALURU-560 001 REPRESENTED BY ITS COMMISSIONER 6. MANGALURU CITY CORPORATION MANGALURU-575 001 REPRESENTED BY ITS COMMISSIONER … RESPONDENTS [BY SHRI. P.N. MANMOHAN, ADVOCATE FOR R1-R4 (IN WAs NO.746-749/2019 IN WP NO.50796/2018 & WPs NO.53609-53611/2018);
SHRI. K.N. PHANINDRA, SENIOR ADVOCATE FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R5 (IN WP NO.50796/2018 & WPS NO.53609-53611/2018) SHRI. VISHWAJITH SHETTY, ADVOCATE FOR R6 (IN WP NO.50796/2018 & WPS NO.53609-53611/2018)] WA No.750/2019 BETWEEN:
THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT VIKASA SOUDHA, BENGALURU-560 001 REPRESENTED BY ITS UNDER SECRETARY TO THE GOVERNMENT ... APPELLANT [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA] AND:
1. RUDOLPH LAWRENCE PINTO S/O JOSEPH PINTO AGED ABOUT 51 YEARS PACHHANADI GRAMA, BONDEL POST BANGERSHEME HOUSE MANGALURU TALUK MANGALURU DISTRICT-575 008 2. COMMISSIONER MANGALORE MAHANAGARA PALIKE MANGALORE-575 001 ... RESPONDENTS [BY SHRI. RAJARAM SOORYAMBAIL, ADVOCATE FOR R1 (IN WA NO.750/2019 IN WP NO.54664/2018)] SHRI. VISHWAJITH SHETTY, ADVOCATE FOR R2 (IN WP NO.54664/2018)] WA No.751/2019 BETWEEN:
1. THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT DR.AMBEDKAR VEEDHI, M.S.BUILDING BENGALURU-560 001 REPRESENTED BY ITS UNDER SECRETARY TO THE GOVERNMENT 2. DEPUTY COMMISSIONER MANGALORE TALUK D.K. DISTRICT-575 001 ... APPELLANTS [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA] AND:
SMT. SUNANDA B W/O SHARATH KUMAR AGED ABOUT 66 YEARS R/AT SRI MOOKAMBIKA HOUSE NO.2-2-80/2 KOTTARA CROSS 1ST CROSS ROAD BEJAI, MANGALORE-545 004 ... RESPONDENT [BY SHRI. DHANANJAYA KUMAR, ADVOCATE (IN WA NO.751/2019 IN WP NO.43519/2018)] WA No.752/2019 BETWEEN:
1. THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT M.S.BUILDING, BENGALURU-560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY 2. THE DEPUTY COMMISSIONER DAKSHINA KANNADA DISTRICT MANGALURU-575 001 DAKSHINA KANNADA ... APPELLANTS [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA] AND:
1. SRI JEEVAN KUMAR S/O LATE YOGESH AMIN AGED ABOUT 28 YEARS NO.1-29-2420/2, RAMAPPA KARKERA HEIGE BAIL, BEHIND SCS COLLEGE URWA, ASHOKNAGARA MANGALORE-575 006 2. THE STATE ELECTION COMMISSION PARK HOUSE, CUBBON PARK BENGALURU-560 001 REPRESENTED BY ITS COMMISSIONER 3. MANGALORE CITY CORPORATION BALLALBAGB, MANGALURU-575 003 REPRESENTED BY ITS COMMISSIONER ... RESPONDENTS [BY SHRI. UDAY PRAKASH MULIYA, ADVOCATE FOR R1; (IN WA NO.752/2019 IN WP NO.44520/2018); SHRI. K.N. PHANINDRA, SENIOR ADVOCATE FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R5 (IN WP NO.44520/2018);
SHRI. VISHWAJITH SHETTY, ADVOCATE FOR R3 (IN WP NO.44520/2018)] THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 14/1/2019 IN WP NO.44499/2018, WP NO.50796/2018, WPs NO.53609-611/2018, WP NO.54664/2018, WP NO.43519/2018 AND WP NO.44520/2018 PASSED BY THE LEARNED SINGLE JUDGE.
In WAs No. 97-99/2019 BETWEEN:
1. SMT. SHAHEENA. S W/O. AKHEEL KHAN AGED 48 YEARS R/O. ANJUMAN ROAD, FORT, WARD NO.17 CHICKBALLAPUR-562 101 2. SMT. SHANAZ BEGUM W/O. B. AZGAR AGED ABOUT 55 YEARS WARD NO.17, FORT CHICKBALLAPUR-562 101 3. RAVICHANDRA KUMAR S/O. LATE KRISHNAPPA AGED ABOUT 50 YEARS R/O. SIDLAGHATTA MAIN ROAD CHICKBALLAPUR-562 101 ... APPELLANTS [BY SHRI. S.P. SHANKAR, SENIOR ADVOCATE FOR SMT. MAMATA G. KULKARNI, ADVOCATE] AND:
1. STATE OF KARNATAKA REP. BY ITS SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA BANGALORE-560 001 2. STATE ELECTION COMMISSION REP. BY ITS COMMISSIONER NO. 8, 1ST FLOOR KSCMF BUILDING ANNEXE CUNNINGHAM ROAD BANGALORE-560 052 3. DEPUTY COMMISSIONER AND DISTRICT ELECTION OFFICER CHICKBALLAPUR DISTRICT CHICKBALLAPUR-562 101 4. SRI. S.M. RAFEEQ S/O LATE C.K. ABDUL SATTAR AGED 61 YEARS NO.786, KOTE WARD NO.17 ABID MANZIL, CHIKKABALLAPUR CHIKKABALLAPUR DISTRICT ... RESPONDENTS [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA FOR R1 & R3;
SHRI. K.N. PHANINDRA, SENIOR ADVOCATE FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R2; SHRI. R. SUBRAMANYA AND SHRI. B.R. SRIVATSA, ADVOCATES FOR R4] THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THAT PART OF THE ORDER RELATING TO WPs NO.52537/2018 AND 52996-97/2018 DATED 14/01/2019 AND TO ALLOW THE WRIT PETITION AS PRAYED FOR QUASHING ANNEXURE-J IN THE WRIT PETITION, BY ALLOWING THIS APPEAL, WITH COST THROUGHOUT.
In WAs No. 3200-3205/2018 BETWEEN:
1. R. RATHANAMMA W/O. Y.G. SRINIVAS AGED ABOUT 56 YEARS #03, 2ND CROSS, SONNASHETTYHALLI CHINTAMANI-563 125 2. RAMADEVI D/O. NAGARAJ AGED ABOUT 39 YEARS ARALIKATTE ROAD MALAPALLI WARD NO.10 CHINTAMANI-563 125 3. VANAJAKSHI W/O. K.Y. SHIVASHANKARAREDDY AGED ABOUT 49 YEARS NAREPPA KUNTE, K.R.EXTENTION WARD NO.12, CHINTAMANI-563 125 4. P. DEVARAJA S/O. PEDDAPPAIAH AGED ABOUT 46 YEARS WARD 1, VENKATAGIRIKOTE NORTH KARAGADAMMA NILAYA CHINTAMANI-563 125 5. R. SRINATHA S/O. LATE RANGAREDDY AGED ABOUT 40 YEARS WARD NO.24, NEAR ANJANEYA SWAMY TEMPLE NARASIMHA PETE, CHINTAMANI-563 125 6. C. MANJUNATHA S/O. LATE CHOWDAPPA AGED ABOUT 42 YEARS WARD NO.9, MALAPALLI CHINTAMANI-563 125 ... APPELLANTS (BY SHRI. A. MAHAMAD TAHIR, ADVOCATE) AND:
1. STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT REP. BY ITS SECRETARY M.S. BUILDING BANGALORE-560 001 2. THE DEPUTY COMMISSIONER CHIKBALLAPUR DISTRICT CHIKBALLAPUR-562 101 3. THE CHINTAMANI MUNICIPAL COUNCIL REPRESENTED BY ITS CEO CHINTAMANI-563 125 ... RESPONDENTS [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA FOR R1 & R2;
SHRI. R.V. RAMESH KUMAR ADVOCATE FOR R3] THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE APPEAL. BY SETTING ASIDE THE ORDER DATED 9.10.2018 IN WRIT PETITION NO.39670/2018 AND WPS NO.41190-194/2018 BY THE LEARNED SINGLE JUDGE AND GRANT THE PRAYERS AS PRAYED FOR IN THE WPS NO.39670/2018 AND 41190-194/2018.
In WA No.146/2019 BETWEEN:
SRI SEETHARAM S/O LATE VENKATAPPA AGED ABOUT 62 YEARS MAGADI KUNIGAL ROAD MAGADI TOWN RAMNAGAR DISTRICT-562 120 ... APPELLANT (BY SHRI. A. MAHAMAD TAHIR, ADVOCATE AND SHRI VARUN J. PATIL, ADVOCATE) AND 1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA, BENGALURU-560 001 2. THE DEPUTY COMMISSIONER REPRESENTED BY ITS COMMISSIONER RAMANAGARA-562 159 3. MAGADI TOWN MUNICIPAL COUNCIL REPRESENTED BY ITS SECRETARY MAGADI TOWN RAMANAGARA DISTRICT-562 120 4. STATE ELECTION COMMISSION, KARNATAKA REPRESENTED BY ITS SECRETARY NO.8, 1ST FLOOR, KSCMF BUILDING CUNNINGHAM ROAD, VASANTH NAGAR BENGALURU- 560 052 ... RESPONDENTS [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA FOR R1 & R2;
SHRI. K.N. PHANINDRA, SENIOR ADVOCATE FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R4;
R-3 SERVED] THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE ORDER DATED 14/01/2019 IN WRIT PETITION NO.332/2019 BY THE LEARNED SINGLE JUDGE AND GRANT THE PRAYERS AS PRAYED FOR IN THE WRIT PETITION NO.332/2019.
In WA No.147/2019 BETWEEN:
SRI. G.A. DEVARAJU S/O. AYYANNA AGED ABOUT 43 YEARS OPPOSITE OLD ST. MICHAEL SCHOOL BASAWESHWARANAGARA KANAKAPURA-562 117 ... APPELLANT [BY SHRI. A. MAHAMAD TAHIR AND SHRI. VARUN J. PATIL, ADVOCATES] AND 1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA, BENGALURU-560 001 2. THE DEPUTY COMMISSIONER REPRESENTED BY ITS COMMISSIONER RAMANAGARA-562 159 3. KANAKAPURA MUNICIPAL COUNCIL REPRESENTED BY ITS SECRETARY KANAKAPURA-562 117 4. STATE ELECTION COMMISSION, KARNATAKA REPRESENTED BY ITS SECRETARY NO.8, 1ST FLOOR, KSCMF BUILDING CUNNINGHAM ROAD, VASANTH NAGAR BENGALURU- 560 052 ... RESPONDENTS [BY SHRI. N. DINESH RAO, AAG ALONG WITH SHRI. S.H. PRASHANTH, AGA FOR R1 & R2;
SHRI. K.N. PHANINDRA, SENIOR ADVOCATE FOR SMT. VAISHALI HEGDE, ADVOCATE FOR R4;
R-3 SERVED] THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE APPEAL, BY SETTING ASIDE THE ORDER DATED 14/01/2019 IN WRIT PETITION NO.370/2019 BY THE LEARNED SINGLE JUDGE AND GRANT THE PRAYERS AS PRAYED FOR IN THE WRIT PETITION NO.370/2019.
THESE WRIT APPEALS, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.04.2019, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
J U D G M E N T In one batch of intra Court appeals, State Government have challenged the order dated January 14, 2019 passed by the Hon'ble Single Judge directing the State to re-do the Notification dated August 10, 2018 stipulating reservation in respect of various Municipal wards in Mangaluru in writ petitions No.44499/2018, 50796/2018 & 53609-53611/2018, 54664/2018, 43519/2018 and 44520/2018.
2. W.A. No.97-99/2019 have been preferred by unsuccessful writ petitioners challenging the Notification dated August 10, 2018 stipulating reservation in respect of Municipal wards in Chikkaballapura.
3. W.A. No.146/2019 and 147/2019 have been preferred by unsuccessful writ petitioners who had challenged the Notification dated August 10, 2018 stipulating reservation in respect of Municipal wards in Magadi and Kanakapura respectively.
4. W.As. No. 3200-3205 /2019 have been preferred by residents of Chintamani challenging the Notification dated August 10, 2018 stipulating reservation in respect of Municipal wards in Chikkaballapura.
5. We have heard Shri.Dinesh Rao, learned Additional Advocate General for the State, Shri.Phanindra learned Senior Advocate for Election Commission and respective learned advocates for the private respondents.
6. State Government issued a Notification on August 10, 2018 fixing ward-wise reservation for Mangaluru City Corporation. Private respondents filed writ petitions alleging non-compliance of reservation policy as per guidelines contained in Government order No.£ÀCE 240 JA J¯ï Dgï 2013 dated February 2, 2015.
7. The Hon'ble Single Judge disposed of a batch of writ petitions by the impugned common order inter alia granting 14 days’ time to the State Government to issue a fresh Notification in the light of principles laid down and the observations made in the impugned order. Hence, these writ appeals.
8. Shri.Dinesh Rao, mainly contended that the Hon'ble Single Judge erred in entertaining the writ petitions when similar writ petitions have been dismissed by this Court. He further contended that since election process had already begun which includes issuance of Notifications as per reservation policy also, the Hon'ble Single Judge ought not to have entertained the writ petitions.
9. Shri.Phanindra, learned Senior Advocate for the Election Commission submitted that Article 243-T of the Constitution mandates that reservation be provided for all tiers of Municipality while conducting election for the Municipal wards. The last census was conducted in the year 2011. The de-limitation of wards was finalized in 2016-17. Keeping in view the density of population, reservation is provided to scheduled castes, scheduled tribes, backward classes including women. Accordingly, a Notification was issued in respect of Mangaluru Corporation on August 10, 2018.
10. Private respondents who intend to contest for elections challenged the said Notification contending inter alia that the said Notification is not in compliance with the reservation policy as per the guidelines contained in Government Order dated March 2, 2015. Learned Advocates for private respondents contended that reservation guidelines have been framed as per 2011 census. Reservation is required to be given by rotation across all categories and as far as possible repetition of same category must be avoided.
11. We have carefully considered the submissions of learned Advocates for the parties and perused the records.
12. Article 243-T of the Constitution mandates that reservation be provided in Municipalities.
13. Under Section 11 of the Karnataka Municipalities Act, 1964 and Section 7 of Karnataka Municipal Corporations Act, 1976 (for short ‘KMC Act’), State Government is required to provide reservation.
14. It is not in dispute that last census was conducted in 2011. Under the provisions of Karnataka Municipalities Act and Karnataka Municipal Corporations Act, the State Government is required to determine the total number of seats for each Town Municipal Council, City Municipal Council, Taluka Panchayat and Corporation based on the population figures, carry out de-limitation exercise and fix the boundaries of wards. Based on the population, in some cases the boundaries will have to be re-drawn. This may result in increase or decrease of seats or wards.
15. After the de-limitation exercise, the State Government is required to fix reservation in each Municipality based on the number of seats. Based on the 2011 census, the State Government finalized the de- limitation exercise and reservation in wards and issued Draft Reservation Notification in the month of May 2018. On July 19, 2018, Final Reservation Notifications were issued by the State Government in respect of Mysore and Shivamogga Municipal Corporations. On July 30, 2018, Final Reservation Notifications have been issued by the State Government for all 218 wards of Municipalities in the State.
16. The Notification dated July 19, 2018 was challenged before this Court in W.P. No.31722/2018 and connected writ petitions (P.Umesh Vs. State of Karnataka and others). By order dated August 9, 2018, an Hon'ble Single Judge of this Court dismissed the said writ petitions.
17. The writ petitioners who challenged the Notifications in respect of Mangaluru City Corporation and other Municipal Councils contended before the Hon'ble Single Judge that rotation of reservation among the wards in each Municipality was not correctly made. According to them rotation of reservation ought to have been undertaken by taking into consideration the reservations given in the wards from 1993 onwards.
18. The principal stand of the State Government and the Election Commission before the Hon'ble Single Judge as also in these appeals is that the reservations given in the Notifications issued in the year 2018 are based on 2011 census whereas the reservation provided during 1993 and 2001 were based on 1991 census and reservation provided during 2007 and 2013 was based on 2001 census.
19. It is the further urged on behalf of the State Government that de-limitation exercise was carried out between 2016 and 2018 for all Municipalities. In view of variation in population, boundaries of wards had to be changed. Therefore, the starting point of reservations has been considered as 2018. In view of increase in population and change in the boundaries of wards, the rotation pursuant to census conducted in the year 1991 and 2001 could not have been applied.
20. Thus, it was vehemently contended by Shri.Dinesh Rao, learned AAG and Shri.Phanindra, learned Senior Advocate for the Election Commission that once there is increase in population and re-fixing of boundaries, reservation point must start based on the latest census and rotation cannot be effected based on the previous census. They strongly relied upon paragraphs No.16 and 21 of a decision of this Court in Karnataka State Election Commission Vs. G.Sangappa and others1 and paragraph No.28 of P.Umesh’s case.
21. Learned AAG strongly contended that though the Hon'ble Single Judge has accepted the proposition with regard to the starting point of limitation in principle, in respect of 13 Municipalities, the reservation provided by the State Government have been set-aside and State Government have been directed to re-do the exercise within 15 days.
22. Shri.Phanindra, learned Senior Advocate urged that Article 243-U of the Constitution requires that 1 2011(3) Kar.L.J. 32 election of Municipalities must be completed before the expiry of its duration. He contended that in Kishansing Tomar Vs. Municipal Corporation of City of Ahmedabad and others2, the Hon’ble Supreme Court of India has directed all State Election Commissions to conduct elections before expiry of the term.
23. In G.Gangappa’s case, it is held as follows:
“23. But then, it is necessary to notice here, that during the course of hearing it was the vehement contention of the learned Counsel for respondent 1, that all that respondent 1 desired to seek by filing Writ Petition No.36337 of 2010 was, to enforce the “reservation” as also “rotation” contemplated under Section 162 of the Panchayat Raj Act, read with, Rule 3 of the Reservation by Rotation Rules, 1998. This also takes us to the next aspect of the matter, arising out of the third submission advanced at the hands of the learned Counsel for the appellant, namely, whether the appellant while issuing the impuged notification dated 8-11-2010 had given effect to “rotation” in the matter of “reservation”? For the instant determination, we must revert back to the first conclusion arrived at by us hereinabove, namely, that the issue of “reservation”, as also “rotation”, has to commence from the electoral process conducted in the year 2005, based on census operations and determination conducted 2 (2006) 8 SCC 352 immediately prior thereto. Based on the aforesaid, it is also necessary to record, that after the election process was conducted in the year 2005, the next process of election is the one which is subject-matter of challenge before us (to be conducted in 2010). The issue confronting us is , whether “rotation” has been given effect to in the instant, second electoral process within the framework of Section 162 of the Panchayat Raj Act, read with, Rule 3 of the Reservation by Rotation Rules, 1998? The instant controversy (raised by respondent 1) refers to the reservation in Anagodu Constituency in Davanagere District. From the chart which is taken on record as Annexure-B, the learned Counsel for the appellant point out to us the number of villages that have been shifted out of, and also certain other villages which have been shifted into Anagodu constituency in the year 2005, which was altered its composition substantially. Hence, in the year 2005, the said constituency was reserved for Scheduled Caste candidates, during the present electoral process the said constituency is reserved for Scheduled Tribe (woman) candidates. We are, therefore, satisfied that “rotation” has been given due effect to, in the impugned notification dated 8-11-2010, within the meaning of the proviso under sub-rule (4) of Rule 3 of the Reservation by Rotation Rules, 1998. In fact, it was the emphatic submission of the learned Counsel for the appellant, that not a single reserved constituency has been allotted in the present electoral process, to the same reserved category to which it was assigned in the elections held in 2005. There is therefore no scope for any doubt, that in the present election process “rotation” has been given effect to in the matter of “reservation” as has been contemplated under the proviso to sub-rule (4) of Rule 3 of the Reservation by Rotation Rules, 1998.”
(emphasis supplied) 24. It is not in dispute that in P.Umesh’s case, wherein the Notification in respect of Mysuru and Shivamogga Municipal Corporation Wards issued on 19.07.2018 was challenged, this Court has dismissed the said writ petitions. We have carefully gone through the said decision. The Hon'ble Single Judge having considered the provisions of the KMC Act and Articles 243ZA, 243ZG and 243U and the decision in the case of Kishansing Tomar, has dismissed the writ petitions.
25. After adverting to the decision in Sangappa’s case, the Hon'ble Single Judge has held in the impugned order as follows:
“Without commenting on the question of applicability of the principle in Sangappa’s case in so far as the starting point of cycle of rotation for the purpose of reservation consequent upon delimitation, what would emerge as a point of judicial review is that:
(a) There has to be rotation which is a constitutional mandate and that would, in its barest understanding mandate non-repetition as understood and decided in the case of Abdul Azeez v. State of Karnataka and others (W.P. Nos. 38256/2013 and connected matters dated 6.1.2014).
(b) That if the cycle of rotation is sought to be interrupted in a manner as not envisaged in the notification, material ought to be provided so as to made out a case that the identity of the Ward has substantially altered so as to treat it as a different entity and accordingly rework if necessary, the cycle of rotation or exempt the operation of the cycle of rotation as regards such a Ward.
The necessity for delimitation consequent to publication of Census statistics is not disputed, but ipso facto delimitation may not necessarily result in a circumstance necessitating reworking of cycle of rotation or starting it afresh. In fact, even in the case of G.Sangappa before holding that the fresh cycle of rotation was to commence it ought to be noted that in the facts of the said case as detailed in para – 17 there was an increase in the number of Constituencies and there was an express undertaking of there not being any repetition in reservation.”
26. Thus the Hon'ble Single Judge has proceeded on the premise that de-limitation may not necessarily result in a circumstance necessitating re-working of cycle of reservation.
27. In view of the law laid down in Sangappa’s case, it is clear that the reservation is required to be provided based on the immediate previous census. Further, in view of directions contained in Kishansing Tomar’s case, Election Commission is required to complete the elections at the earliest.
28. In view of the law laid down in Sangappa’s case and the directions contained in Kishansingh Tomar’s case, we are of the considered view that the Hon'ble Single Judge erred in interfering with reservation provided to individual wards and directing the State to re- do the Notification in respect of 13 Municipalities. Hence, the appeals preferred by the State Government merit consideration.
29. Insofar as Magadi, Chikkaballapura and Kanakapura TMCs are concerned, the unsuccessful writ petitioners are before this Court. It was urged by the learned Advocates for the petitioners led by Shri.S.P.Shankar, learned Senior Advocate that reservation ought to have been given based on rotation. Particular reference was made to ward No.17 of Chikkaballapura and it was contended that since 1991 only one particular candidate has been successful. Therefore, reservations ought to have been made considering the previous reservation by rotation and not based on the latest census. However, in view of our finding that the law laid down in Sangappa’s case holds the field, the writ appeals presented by unsuccessful writ petitioners do not merit any consideration.
30. Hence, the following order:
(a) W.As. No.318 & 746-752/2019 are allowed.
Common order passed in W.Ps. No.44499/2018, 50796/2018 & 53609- 53611/2018, 54664/2018, 43519/2018 and 44520/2018 is set-aside and writ petitions stand dismissed.
(b) All other writ appeals are also dismissed.
In view of disposal of these appeals, pending interlocutory applications do not survive for consideration and they are also disposed of.
No costs.
Sd/- JUDGE SPS Sd/- JUDGE