Bayamma vs State Election Commissioner and Others

K. Bhakthavatsala, J.—Though the writ petition is listed for hearing on the applications filed for vacating interim order, with the consent of the Learned Counsels for the parties, heard arguments for final disposal.

The learned Counsel is before this Court under Articles 226 and 227 of Constitution of India praying for quashing the impugned Notification dated 27.01.2011 bearing No. (sic) /07/ /2011 on the file of Respondent No. 2 at Annexure-''E''.

The brief facts of the case leading to the filing of the writ petition may be stated as under:

The learned Counsel claims that she is elected member of Aland Taluka Panchayath. She belongs to ST community and eligible to contest the election for the post of Adhyaksha of Aland Taluka Panchayath. After the election for the Taluka Panchayaths in the State of Karnataka was over, the Respondent No. 2 has issued a Notification dated 25.01.2011 at Annexure-''A'' reserving the post of Adhyaksha in favour of ST (Woman). It is stated that from the year 1995 to 2009, the post of Adhyaksha was reserved in favour of BC-B; SC; BCA; ST; BCB (Woman); General; SC (Woman); BCA; General (Woman) respectively. It is further submitted that the learned Counsel who belongs to Congress party and eligible to contest election for the post of Adhyaksha of Aland Taluka Panchayath and there is No. ST (Woman) candidate elected for the Aland Taluka Panchayath from either BJP or JDS and the learned Counsel is the only candidate could contest the election on the basis of the reservation made in the above said Notification. It is pleaded that in Gulbarga Zilla Panchayath No. party had absolute majority. Therefore, according to the learned Counsel, there was "Operation Kamala" by the ruling BJP party and three Zilla Panchayath members belonging to JDS party had shown their support to BJP party for the purpose of election of Adhyaksha of Gulbarga Zilla Panchayath and as a result of the same, there was an understanding between JDS and BJP parties to reserve the post of Adhyaksha of Aland Taluka Panchayath for SC candidate instead of ST (Woman). In that regard an article also appeared in newspaper. In pursuance of said understanding between JDS and BJP parties, the post of Adhyaksha of Aland Taluka Panchayath was reserved for SC candidate by modifying the earlier Notification. The impugned Notification dated 27.01.2011 at Annexure-''E'' came to be issued changing the reservation for the post of Adhyaksha of Aland Taluka Panchayath in favour of SC candidate. It is contended that the impugned Notification is illegal and unsustainable in the eye of law.

Learned Counsel for the learned Counsel submits that the change of reservation for the post of Adhyaksha of Aland Taluka Panchayath is politically motivated and unconstitutional. It is also contended that the impugned Notification issued by the Respondent No. 2 is highly illegal, arbitrary and contrary to the law and records and besides that the same is contrary to the principles of natural justice. The bone of contention of the Learned Counsel for the learned Counsel is that No. reason whatsoever is mentioned in the impugned Notification calling for modifying reservation of the post of Adhyaksha of Aland Taluka Panchayath. Therefore, he submits that the impugned Notification at Annexure-''E'' in so far as shifting reservation from ST (Woman) to SC for the post of Adhyaksha of Aland Taluka Panchayath is liable to be quashed.

Sri Shivakumar Tengli, Learned Additional Government Advocate appearing for Respondent No. 2 submits that on the basis of the population, the post of Adhyaksha of Aland Taluka Panchayath should have been reserved in favour of SC, but by mistake it was reserved in favour of SC (Woman) and the same was rectified by issuing the impugned Notification and there is No. illegality or infirmity in the impugned Notification at Annexure-''E''.

Sri R.S. Siddapurkar, Learned Counsel appearing for Respondents 3, 5 and 6 submits that the impugned Notification came to be made by the Government following the right procedure and implementing the scheme of the Act and making the reservation on the basis of the population. Therefore, there is No. illegality or infirmity in the impugned Notification. He also submits that as per Article 243O of Constitution of India, in electoral matters, the interference by the Courts is barred.He cited an unreported decision dated 28.09.2010 made in Writ Appeal No. 3065/2010 and Writ Appeal No. 3096-97/2010 Deputy Commissioner, Davanagere District, Davanagere v. N. Latha W/o Basavarajappa and Ors. on the point that the Principal Division Bench has allowed the writ appeals holding that under Article 243O the Courts cannot interfere in electoral matters. He cited another decision in the case of Thaggahalli Venkatesh Vs. Smt. R. Nagarathna and Others, , stating that Article 243O is applicable for the election to the post of Adhyaksha and Upadhyaksha. He submits that in the present case also election process was initiated on 31.01.2011, fixing the date of election for Adhyaksha and Upadhyaksha on 09.02.2011 at about 12.00 Noon (i.e. today) and in view of Article 243O of the Constitution of India that the writ petition is liable to be dismissed.

Sri Prakash Yeli, Learned Counsel appearing for Respondents 7 to 9 adopt the arguments of Sri R.S. Siddapurkar and submits that there is No. merit in the writ petition and the same may be dismissed.

In view of the arguments addressed by the Learned Counsels for the parties, I formulate the following points for my consideration:

(i) Whether Article 243O of the Constitution of India is applicable in so far as election to the office of Adhyaksha and Upadhyaksha of Panchayath / Taluka Panchayath / Zilla Panchayath?

(ii) Whether the impugned Notification at Annexure-''E'' in so far as reserving the post of Adhyaksha of Aland Taluka Panchayath in favour of SC is sustainable in the eye of law?

Point No. 1:

So as to answer point No. 1, it is useful to excerpt Article 243O of the Constitution of India, which reads as under:

243O. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any Court;

(b) No. election to any Panchayat shall be called in question except by an election petition presented to such Authority and in such manner as is provided for by or under any Law made by the Legislature of a State.

Un-reported decision of Division Bench, supra, is in relation to questioning the reservation of Joladal Gram Panchayath for women candidates belonging to BC(A) category. Therefore, Article 243O of the Constitution of India is applicable. But the decision is not applicable to the case on hand as it relates to election to the post of Adhyaksha of Taluk Panchayath.

From the language viz.

(i) Law relating to the delimitation of constituencies,

(ii) Allotment of seats to such constituencies

(iii) Election to any Panchayat, employed in Article 243O of the Constitution of India

In my considered opinion the words ''election to any Panchayath''s means election to Taluk/Zilla Panchayath and not the election to the post of Adhyaksha or Upadhyaksha of Taluka Panchayath or Zilla Panchayath. In other words Article 243O is applicable to the primary election to the constituencies. Since this is my view, the decision reported in Thaggahalli Venkatesh Vs. Smt. R. Nagarathna and Others, supra, is of No. avail to the Respondents. Accordingly, I answer point No. 1 in the negative against the Respondents.

Point No. 2:

The Respondent No. 2 Government has issued a Notification dated 25.01.2011 at Annexure-''A'', after the election to the Taluka Panchayaths was over, reserving the post of Adhyaksha of Aland Taluka Panchayath in favour of ST (Woman). But within two days thereafter the Government has passed the impugned Notification dated 27.01.2011 modifying the same and reserving the post to SC. Though it is orally submitted by Learned AGA that there was an error in the earlier Notification at Annexure-''A'', and thereafter the same was rectified. But not a scintilla of ground for modification of the earlier Notification is mentioned in the impugned Notification. The ground on which the earlier reservation was modified is not established by the Government. In my view the impugned Notification is arbitrary and biased. The learned Counsel has challenged the Notification insofar as reserving the post of Adhyaksha for Aland Taluka Panchayath. Therefore, the entire impugned Notification cannot be disturbed. Thus, the impugned Notification in so far as the reservation for the post of Adhyaksha of Aland Taluka Panchayath in favour of SC is liable to be quashed. Accordingly, point No. 2 is answered in the negative in favour of the learned Counsel and against the Respondents.

It must be mentioned that time and again this Court in various reported judgments has directed the Government to adopt a proper procedure and there shall be transparency while reserving the post of Adhyaksha and Upadhyaksha, but in vain. This is high time that the Respondent No. 2 shall take note of the same and see that even before election results for Panchayaths are announced, the reservation for the posts of Adhyaksha and Upadhyaksha shall be completed.

In view of the above, the writ petition is allowed. The impugned Notification dated 27.01.2011 at Annexure-''E'' in so far as reserving the post of Adhyaksha of Aland Taluka Panchayath in favour of SC is quashed.

In view of disposal of the writ petition, the applications in Misc.W.80126/2011 &Misc.W.80127/2011 filed for vacating the interim order do not survive for consideration and they are accordingly disposed off.

Granted three weeks'' time to file memo of appearance by Sri Shivakumar Tengli, Learned Additional Government Advocate for Respondent No. 2.