w w w . L a w y e r S e r v i c e s . i n



Anand & Others v/s State of Karnataka, Represented by Principal Secretary Urban Development Department, Bengaluru & Others


Company & Directors' Information:- ANAND PRIVATE LIMITED [Strike Off] CIN = U00000DL2001PTC109063

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- ANAND PRIVATE LIMITED [Strike Off] CIN = U99999MH1975PTC018274

Company & Directors' Information:- J J DEVELOPMENT PRIVATE LIMITED [Active] CIN = U50300WB1996PTC081491

Company & Directors' Information:- KARNATAKA URBAN DEVELOPMENT CORPORATION LIMITED [Active] CIN = U45202KA1970ULL001975

Company & Directors' Information:- ANAND AND ANAND PVT. LTD. [Amalgamated] CIN = U99999DL1983PTC016655

Company & Directors' Information:- L N DEVELOPMENT LIMITED [Active] CIN = U70102ML1986PLC002590

Company & Directors' Information:- ANAND AND CO. P. LTD. [Active] CIN = U74899DL1988PTC031346

Company & Directors' Information:- D P S DEVELOPMENT PVT LTD [Active] CIN = U45202WB1988PTC044797

Company & Directors' Information:- ANAND LIMITED [Active] CIN = U51101WB2010PLC148865

Company & Directors' Information:- ANAND (INDIA) PRIVATE LIMITED [Amalgamated] CIN = U74591DL1998PTC095751

Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- AMP URBAN INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164960

Company & Directors' Information:- B-ANAND AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45203DL1988PTC032328

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

    Writ Petition No. 35 of 2020 (LB-RES-PIL)

    Decided On, 10 December 2020

    At, High Court of Karnataka

    By, THE HONOURABLE CHIEF JUSTICE MR. ABHAY S. OKA & THE HONOURABLE MR. JUSTICE S. VISHWAJITH SHETTY

    For the Petitioners: K. Diwakara, Advocate. For the Respondents: R1, R2, R4 & R6, Vikram Huilgol, AGA, R3 & R5, K.N. Phanindra, Sr. Counsel, Vaishali Hegde, Advocate.



Judgment Text

(Prayer: This Writ Petition is filed Under Article 226 & 227 of the Constitution of India, praying to direct to the respondents to quash the notification dated 24.07.2019 (Annexure - A) and etc.)Through Video Conferencing:1. Heard the learned counsel appearing for the petitioner, the learned Additional Government Advocate for the first, second, fourth and sixth respondents and the learned senior counsel appearing for the third respondent. The fifth respondent is a formal party considering the reliefs claimed in the petition.2. This writ petition relates to the general election of the fifth respondent -Vijayapura Municipal Corporation which is constituted under the Karnataka Municipal Corporations Act, 1976 (for short, "the said Act of 1976"). The tenure of the Councilors of the fifth respondent ended on 14th July, 2019. The prayer in this petition is based on the mandate of clause (3) of Article 243U of the Constitution of India (for short, "the Constitution"). The mandate is that an election to constitute a Municipality shall be held before the expiry of its term which is of five years. Therefore, the election in the present case ought to have been completed before 14th July, 2019.3. It appears that separate notifications were issued by the State Government in exercise of the powers under clauses (a) and (c) of sub-section (1) of Section 21 of the said Act of 1976. It is pointed out that writ petitions were filed before the Kalaburagi Bench challenging the said notifications. The writ petitions, being W.P. No.204314 of 2018 and other connected petitions were disposed of by an order dated 12th November, 2019 on the basis of a statement made by the Additional Government Advocate that the said notifications have been withdrawn and fresh notifications would be issued after taking note of the grievance of the petitioners in the said writ petitions. While disposing of the said writ petitions, a specific direction was issued by the learned Single Judge based on a decision of the Apex Court in the case of KISHAN SINGH TOMAR V. MUNICIPAL CORPORATION OF THE CITY OF AHMADABAD AND OTHERS1 directing that the elections shall be held at the earliest by issuing re-notifications as expeditiously as possible. The prayer in this petition is firstly, for quashing and setting aside the notification dated (2006) 8 SCC 352 24th July, 2019 by which the Regional Commissioner, Belagavi Division was appointed as an Administrator of the fifth respondent. The second prayer is for a writ of mandamus directing the State Government to conduct the general elections of the fifth respondent within a period of six months.4. There is an affidavit filed on behalf of the State Government of Shri Tushar Giri Nath, in charge Principal Secretary of the Urban Development Department. The affidavit records that the exercise of delimitation of wards has already commenced and in fact, the sixth respondent- Deputy Commissioner has submitted a proposal to the State Government on 7th July, 2020 containing the proposed delimitation. It is stated that on 1st October, 2020, the Hon'ble Minister of Urban Development Department granted approval to the said proposal. However, the State Government has relied on the provisions of the Karnataka Municipal Corporations (Third Amendment) Act, 2020 (for short, "the Amendment Act") which came into force on 3rd July, 2020. Section 2-A added to Section 21 of the said Act of 1976 added by the Amendment Act provides for constitution of a Delimitation Commission. It is stated that constitution of Delimitation Commission is required to be made in respect of each Municipal Corporation and only thereafter, the process of delimitation of wards can be undertaken.5. Thus, there is no dispute that the election of the fifth respondent ought to have been concluded before 14th July, 2019. As far as the applicability of the provisions of the Amendment Act to the overdue election of the Municipal Corporation is concerned, the legal position is no longer res integra. By the judgment and order dated 4th December, 2020 in W.P. No.10216 of 2020 and other connected matters, this Court, in paragraph 33 thereof held thus:"33. Considering what we have held in the discussion made above, our conclusions are as under:(a) We hold that the Karnataka Municipal Corporations (third Amendment) Act, 2020 is valid. But, it will have to be read down by holding that it will not apply to the elections of the Corporations which ought to have been held as per the mandate of Article 243U (3) (a) of the Constitution before the Amendment Act came into force.(b) If it is accepted that the overdue elections of the Corporations must be held by giving effect to the provisions of the Amendment Act, the provisions thereof will infringe clause (3)(a) of Article 243U of the Constitution. Hence, the provisions of the said Act of 1976 as amended by the Amendment Act will apply only to the cases of the Municipal Corporations in respect of which the term will expire after 3rd October 2020."(underline supplied)6. Clause 3(a) of Article 243U of the Constitution mandates that the election must be completed before the expiry of the term of a Municipality. In this case, 17 months back, the term of the Corporation has expired. But there is no sign of an election being held. Therefore, the election of the fifth respondent will have to be held as per the said Act of 1976 as it stood prior to the Amendment Act coming into force. Hence, the State Government will have to complete the exercise of issuing a notification in terms of clause (a) of sub-section (1) of Section 21 of the said Act of 1976. As stated in the affidavit of the in charge Principal Secretary of the Urban Development Department, the process is at the final stage inasmuch as the draft proposal for delimitation has been approved by the Hon'ble Cabinet Minister.Therefore, a reasonable time will have to be granted for issuing a notification under clause (a) of sub-section (1) of Section 21 of the said Act of 1976. A time bound schedule will have to be fixed for the preparation of electoral roll and for issuance of the notification under clause (c) of sub- section (1) of Section 21 of the said Act of 1976. For completing the work of delimitation, we propose to grant time of three weeks from today. For completing the process of issuing the notification under clause (c) of sub- section (1) of Section 21 of the said Act of 1976, we propose to grant a maximum time of two months from the date of the notification under clause (a) of sub-section (1) of Section 21 of the said Act of 1976.7. The State Election Commission will have to complete the exercise of preparation of electoral roll of the wards within a period of three months from the date on which the notification of the delimitation of the wards is published. The schedule of election shall be announced by the State Election Commission within a maximum period of 45 days from the date of the publication of the electoral roll.8. It appears from the order dated 12th November, 2019 passed in W.P. No.204134 of 2018 and other connected matters that the notifications for delimitation and reservation not only pertaining to the fifth respondent were withdrawn, but the notifications in respect of the other Corporations were also withdrawn. It is brought to the notice of the Court that the elections of some of the Corporations/Municipalities in the State are not being held in accordance with the mandate of clause (3) of Article 243U of the Constitution of India. It is the duty of this Court to ensure that the constitutional mandate is followed by the State Election Commission and the State Government. We, therefore, direct the Registrar General to initiate suo motu writ petition for the issue of a writ of mandamus directing the State Government and the State Election Commission to hold elections to the Municipalities as per the mandate of clause (3) of Article 243U of the Constitution. The State Government and the State Election Commission shall be made parties to the suo motu writ petition which shall be placed before this Court on 17th December, 2020 under the caption of 'Orders' at 10.30 a.m.9. Hence, we dispose of the petition by passing the following order:(i) We direct the State Government to complete the process of delimitation of wards and publish a notification as required by clause (a) of sub-section (1) of Section 21 of the said Act of 1976 within a maximum period of three weeks from today;(ii) We direct the State to finally notify the reservations in terms of clause (c) of sub-section (1) of Section 21 of the said Act of 1976 within a maximum period of two months from the date on which the notification under clause (a) of sub-section (1) of Section 21 of the said Act of 1976 is published;(iii) We direct the State Election Commission to complete

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the process of preparation of electoral roll of the wards within a period of three months from the date on which the notification under clause (a) of sub-section (1) of Section 21 of the said Act of 1976 is issued;(iv) The election program/election schedule shall be published by the State Election Commission within a maximum of forty five (45) days from the date on which the electoral roll of the wards is published;(v) The Registrar General is directed to initiate a suo motu writ petition for the issue of a writ of mandamus directing the State Government and the State Election Commission to hold elections of the Municipalities as per the mandate of clause (3) of Article 243U of the Constitution. The State Government and the State Election Commission shall be made parties to the suo motu writ petition which shall be placed before this Court on 17th December, 2020 under the caption of 'Orders' at 10.30 a.m.(vi) The writ petition is disposed of with the above directions.
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