Interference in the process of election once the calendar of events are notified would fall foul of the law : High Court of Karnataka

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 9TH DAY OF APRIL 2021 THE HON’BLE MR.JUSTICE M.NAGAPRASANNA WRIT PETITION No.200735 2021THE DEPUTY COMMISSIONER BIDAR BIDAR 585401 THE SECRETARY URBAN DEVELOPMENT AND MUNICIPAL AFFAIRS VIKAS SOUDHA 4TH FLOOR BENGALURU 560001 THE COMMISSIONER BIDAR MUNICIPALITY BIDAR MOHANRAJ MARKET BIDAR 585401 BY SRI Y.H.VIJAYAKUMAR AAG A W SMT. ANURADHA M. DESAI GA FOR R1 & R2) RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO NOTIFICATION VIDE NO.£ÀCE 94 PÉJADgï 2018 ¨ÉAUÀ¼ÀÆgÀÄ 16.03.2021 AS PER ANNEXURE B TO WRIT PETITION ISSUED BY RESPONDENT NO.2 AUTHORITY ONLY IN RESPECT OF GRANTING RESERVATION AT WARD NO.26 TO ‘GENERAL WOMEN CATEGORY’ FROM ‘BACKWARD CLASS A CATEGORY’ AS PER ITS PREVIOUS KARNATAKA GAZETTEE NOTIFICATION DATED 13.01.2021 AND ETC BIRJU UPADHAYA S O WARANGAL AGED ABOUT 37 YEARS OCC: SOCIAL WORKER R O DINDAYAL NAGAR HYDERABAD ROAD BIDAR 585401 PETITIONER BY SRI JAIRAJ K. BUKKA ADVOCATE) THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BENGALURU 560001 THE PRINCIPAL UNDER SECRETARY URBAN DEVELOPMENT DEPARTMENT MUNICIPALITIES AND URBAN DEVELOPMENT AUTHORITIES) ROOM NO.435 4TH FLOOR VIKASA SOUDHA VIDHANA VEEDHI BENGALURU 560001 THE DIRECTORATE OF MUNICIPAL 9TH AND 10TH FLOORS VISVESHWARAIAH TOWER DR. B.R. AMBEDKAR VEEDHI BENGALURU 560001 THE DEPUTY COMMISSIONER BIDAR DISTRICT BIDAR 585401 THE COMMISSIONER CITY MUNICIPAL COUNCIL BIDAR DISTRICT BIDAR 585401 THE COMMISSIONER KARNATAKA STATE ELECTION COMMISSION NO.08 1ST FLOOR K.S.C.M.F. BUILDING ANNEXE CUNNINGHAM ROAD BENGALURU 560052 RESPONDENTS BY SRI Y.H.VIJAYAKUMAR AAG A W SMT. ANURADHA M. DESAI GA FOR R1 TO R4 SRI K.N.PHANEENDRA SENIOR COUNSEL A W SRI AMARESH S. ROJA ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION PASSED BY THE 2ND RESPONDENT VIDE BEARING NUMBER SL.NO.NAAE 94 KMR 2018 BENGALURU DATED 16.03.2021 OF SERIAL NO.32 AND WARD NO.32 WHICH IS AT ANNEXURE M AND ETC. SYED MANSOOR AHMED QADRI S O LATE SYED AHMED QADRI AGE: 55 YEARS OCC: CONSULTING ENGINEER R O H.NO.5 1 110 AHMED BAAG GOLEKHANA BIDAR 585401 BY SRI SACHIN M. MAHAJAN ADVOCATE) PETITIONER THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF URBAN DEVELOPMENT AND MUNICIPAL ADMINISTRATION VIDHANA SOUDHA BENGALURU 560001 THE KARNATAKA STATE ELECTION COMMISSION NIRVACHANA NILAYA SHESHADRI ROAD BENGALURU 560001 REPRESENTED BY ITS COMMISSIONER UNDER SECRETARY THE DEPUTY COMMISSIONER BIDAR 585401 THE ASSISTANT COMMISSIONER BIDAR 585401 THE TAHASILDAR BIDAR 585401 THE CITY MUNICIPAL COUNCIL BIDAR REPRESENTED BY ITS COMMISSIONER BIDAR 585401 BY SRI Y.H.VIJAYAKUMAR AAG A W SMT. ANURADHA M. DESAI GA FOR R1 & R3 TO R5 SRI K.N.PHANEENDRA SENIOR COUNSEL A W SRI AMARESH S. ROJA ADVOCATE FOR R2) RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH NO.RAA.CHU.AA. 45 EUB 2021 ISSUED BY RESPONDENT NO.2 VIDE ANNEXURE G INSOFAR AS IT RELATES TO WARD NOS.5 AND 6 OF CMC BIDAR AND ETC. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: These writ petitions call in question certain notifications of reservation concerning ward Nos.5 6 26 and 32 all Municipal wards of Bidar City. No.26 W.P.No.200790 2021 concerns ward No.32 and W.P.No.200817 2021 concerns ward Nos.5 and 6 Since all these petitions seek to challenge electoral process in the aforesaid municipal wards of Bidar city they are taken up together and are disposed of by this common judgment. Reddy Sri Jairaj K. Bukka and Sri Sachin M. Mahajan learned counsel for the petitioners and Sri Y.H.Vijaykumar learned Additional Advocate General for the State and Sri K.N.Phaneendra learned Senior counsel and Sri Amaresh S. Roja learned counsel appearing for the State Election Commission. W.P.No.200735 2021 & W.P.No.200790 2021 The petition in W.P.No.200735 2021 calls in question the notification dated 16.03.2021 reserving municipal ward No.26 of Bidar city for ‘General Woman’. The State Government by a notification dated 13.01.2021 notified ward No.26 to be reserved for Backward Class ‘A’ Category. This was a draft notification calling for objections from the stakeholders with regard to reservation made to all the 35 wards of Bidar City Municipality. that no voters of respective wards filed any objection within the time stipulated to the notification dated 13.01.2021. After about 60 days the State Government issued a final notification on 16.03.2021 altering the reservation insofar as it pertains to ward No.26 from ‘Backward Class ‘A’ Category’ to ‘General Woman’. No reasons are indicated in the notification for a change from ‘Backward Class ‘A’ Category’ to that of ‘General Woman’. 6. W.P.No.200790 2021 concerns ward No.32 of Bidar city and raises an identical question of change of reservation from ‘Scheduled Caste’ to ‘General Woman’. The facts in this writ petition are that reservation of ward No.32 made in favour of ‘General subject matter W.P.No.204314 2018 and connected cases wherein a notification changing the reservation from ‘Scheduled Caste’ to ‘General Woman’ was called in question. The said writ petitions were disposed on an undertaking given by learned Additional Government Advocate that the notification impugned would be withdrawn and were in fact withdrawn in terms of the undertaking. Therefore the ward continued to be reserved in favour of ‘Scheduled Caste’. The Government issued a notification on 13.01.2021 reserving ward No.32 favour of ‘Scheduled Caste’ which was in tune with the undertaking given by the Government before this Court in the aforesaid writ petitions. After about 60 days claiming to be issuing a final notification again there being any objections from any stakeholder before last date changed reservation of ward No.32 from ‘Scheduled Caste’ to ‘General Woman’. These writ petitions were filed on 24.03.2021 and 25.03.2021. The learned Government Advocate was directed to accept notice on 26.03.2021 and seek instructions in the matter. The matter was listed again on 31.03.2021 and at the request of the learned Government Advocate the matter was listed on 01.04.2021 on 01.04.2021 again at the request of learned Government Advocate the matter was adjourned to 05.04.2021 and on 05.04.2021 again on the request of the learned Government Advocate was adjourned to 06.04.2021. In W.P.No.200735 2021 on 06.04.2021 for want of instructions from the Government this Court was constrained to pass an interim order on 06.04.2021 notwithstanding the calendar of events being notified on 29.03.2021 by the State Election Commission. The matter was again listed on 08.04.2021 and the learned Additional Advocate General was heard and the matter was adjourned to 09.04.2021. All the respective counsel appearing for the petitioners in these cases and the and K.N.Phaneendra Senior Counsel representing the State Election Commission were all heard at length. After hearing counsels appearing for the parties though this Court finds glaring illegality in the action of the State in varying reservation from draft notification without there being any objections filed by any stakeholder in the final notification since calendar of events are notified by the State Election Commission on 29.03.2021 this Court would hold its hands to interfere with the process of election by interjecting the same in view of the judgment of the Hon ble Apex Court in the case of N.P.Ponnuswami vs. The Returning Officer Namakkal Constituency Namakkal Salem Dist. and others reported in AIR 1952 SC 64. Interference in the process of election once the calendar of events are notified would fall foul of the law laid down by the Hon ble Apex Court in the case of N.P.Ponnuswami which is reiterated by the Hon ble Apex Court in its latest judgment in the case of State of Goa and another vs. Fouziya Imtiaz Shaikh and another reported in 2021 SCC Online SC 211 wherein the Hon ble Apex Court has held as follows: 65. A conspectus of the aforesaid judgments in the context of municipal elections would yield following results. I. Under Article 243 ZG(b) no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands off mandated by the non obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process i.e notification for elections is yet to be announced. Therefore in my considered view the writ petitions which in effect challenge the calendar of events issued by the State Election Commission cannot be entertained at this stage as it would run counter to the aforesaid judgments of the Hon ble Apex Court. 10. This writ petition concerns ward Nos.5 and 6 of the City Municipality Bidar. The allegation in the writ petition is 750 voters of ward No.5 are shown as voters in ward No.6. The contention of Sri Sachin M. Mahajan learned counsel for the petitioner that it would tilt the balance in favour of particular party which is illegal and right to vote would be taken away by this method of the State issuing notification on 16.03.2021. This writ petition is filed on 06.04.2021 long after issuance of the notification of calendar of events by the Second Respondent State Election An issue came up consideration before the Hon ble Apex Court in the case of The State of Karnataka and others vs. Gunjahalli Nagappa and others reported in1 SCC 204 the Hon ble Apex Court has held as “ State of Karnataka v. Gunjahalli Nagappa 1 SCC 204 11. That takes us the alternative argument advanced by the learned Solicitor General on behalf of the State Government. He contended that in any event even if the impugned order was bad and the election process was liable to be continued from the stage at which it was interrupted the poll could be taken only on the basis of the revised electoral roll which had come into being in the meanwhile in February 1975 and therefore it was necessary for the designated officer to correct the divisional lists of voters so as to bring them in accord with the revised electoral roll. This contention is also without force. It is true that there is no provision in the Act similar to Section 23 sub section 3) of Representation of the People Act 1950 providing that no amendment transposition or deletion of any entry in the list of voters for a division shall be made and no direction for the inclusion of any name in such list of voters shall be given after the last date for making nominations for an election in the division. But the scheme of the Act and particularly Sections 14 and 15 make it clear that it is one list of voters for each division that is contemplated to be in force during the entire process of election. The list of voters is to be prepared for the election and “election” means the entire process consisting of several stages and embracing several steps by which an elected member is returned whether or not it is found poll. Vide N.P. Ponnuswami v. Returning Officer Namakkal ConstituencySCR 218 : 1 ELR 133] . The list of voters must therefore a fortiori remain throughout the process of election. There cannot be one list of voters for determining the eligibility to stand as a candidate and another for determining the eligibility to vote at the same election. That would not only be irrational but would also introduce confusion and uncertainty the election process. Candidates would not know at the time when they file their nominations as to what is the strength and composition of the electorate in the division in which they are contesting the election. They would also be handicapped in canvassing for votes. It would indeed be a strange and anomalous position if there were two or more different lists of voters at different stages of the same election. Sub sectionof Section 14 does not contemplate a list of voters which keeps on changing from time to time during the election process. It deems the electoral roll for the territorial area of the division in force at the relevant time to be the list of voters for the division “for the purpose of the Act” that is for the purpose of election which is the whole process culminating in a candidate being declared elected and not merely polling. The same list of voters is therefore to prevail for all stages in the election. This we find emphasised also in sub section of Section 14 which enacts that every person whose name is in the list of voters referred to in sub sectionshall be qualified to vote at the election of a member for the division to which such list pertains. Sub sectionof Section 15 also points in the same direction. It says that “the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be at an election”. The reference here as a matter of plain grammar is indisputably to the same list of voters which is to be conclusive for both purposes. It is therefore clear interpretation of the provision of the Act that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant electoral roll for the purpose of preparation of the list of voters must consequently be taken to be the electoral roll in force at the date when the election process commenced that is the date the calendar of events was published. The same view was taken by a Division Bench of the Mysore High Court in Basavannappa Gadlappa Sankar2 Mys LJ 289]. We are in agreement with that view. The poll in the present case must therefore be taken on the basis of the list of voters for each division prepared with reference to the electoral roll in force on December 7 1974 that being the date on which the calendar of events was published by the Returning Officer. 12. One other question was also raised us namely whether designated officer can be required to rectify the list of voters for a division if it can be shown that the list of voters does not correspond exactly with the electoral roll for the territorial area of the division for example some voters in a particular house in a census block number falling in the division though shown in the electoral roll as such are through inadvertence omitted to be included in the list of voters for the division. It is not necessary for the purpose of the present appeal to decide this question but we may point out that till the election process has commenced by the issue of notice fixing the calendar of events there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the electoral roll. But once the calendar of events is published and the election process has begun it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We however do not wish to express any final opinion on this point.” Emphasis supplied) 11. Therefore entertaining the writ petition at this stage on the plea of the petitioner would again fall foul of the judgment of the Hon ble Apex Court supra. The learned counsel for the petitioner submits that on 08.04.2021 there is a new voters list drawn up which also is not in conformity with the notification dated 16.03.2021. If that be so it is for the petitioner to submit a representation forthwith to the respondents who would be obliged to consider the same in accordance with law. 12. For the aforesaid reasons I pass the dismissed. W.P.No.200735 2021 and 200790 2021 are is dismissed with observations made hereinabove. Sd 

Summary: The writ petitions which in effect challenge the calendar of events issued by the State Election Commission cannot be entertained at this stage as it would run counter to the prior judgments of the Hon’ble Apex Court. This was held in JEELANI V. The THE DEPUTY COMMISSIONER BIDAR &amp; Ors and connected matters[W.P.NO.200735/2021 and connected matters] in the High Court of Karnataka by a single bench consisting of JUSTICE  M.NAGAPRASANNA. The facts are that multiple petitions have been filed that seek to challenge the electoral process in the municipal wards of Bidar city. These writ petitions call in question certain notifications of reservation concerning ward Nos.5, 6, 26, and 32 Municipal wards of Bidar City. The court while hearing counsels appearing for the parties, found glaring illegality in the actions of the State in varying reservations from draft notification, without there being any objections filed by any stakeholder in the final notification. But also stated that the calendar of events had already been notified by the State Election Commission. The court discussed that Court would have to hold its hands to interfere with the process of election by relying on the judgment of the Hon’ble Apex Court in the case of  N.P.Ponnuswami vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others, were in the court had observed that “Interference in the process of election once the calendar of events is notified would fall foul of the law.” The court also referred to the judgment of the State of Goa and another vs. Fouziya Imtiaz Shaikh and another, wherein the following observations were made, “I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is, therefore, a matter of discretion exercisable by a writ court as to whether interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced”