Nominated Members Of Town Panchayats Cannot Vote In Legislative Council Elections: Karnataka High Court

A single judge bench of Justice Hemant Chandangoudar, allowing a batch of petition challenging the inclusion of nominated members in the voter list,  said:

"The term 'every member of the Local Authority' means 'only the elected members who are the councillors of the Town Panchayat and the said term cannot be extended to persons nominated by the Government to the Town Panchayat, who are not the councillors of the Town Panchayat and interpretation otherwise would lead to absurd results and goes against the spirit of Article 243-R Constitution of India and Section 352 of the Act, 1964."

Case details:

The petitioners challenged the inclusion of persons nominated to the respective Town Panchayats under Section 352(1)(b) of the Karnataka Municipalities Act, 1964, in the electoral roll to the election to the Karnataka Legislative Council in 12 Chikkamagaluru Local Authorities Constituencies.

Findings:

The bench noted that Section 27 of the Representation of the People Act, deals with preparation of electoral rolls for council constituencies and Section 27(e) specifies that the provision of Sections 15, 16, 18, 22 and 23 shall apply in relation to Local Authorities Constituencies as they apply to assembly constituencies.

Further, it said that Section 24 - which provides for an appeal against inclusion of names in the electoral roll of the assembly constituencies, is conspicuously absent in Section 27(e) of RP Act, 1950 in relation to the inclusion of names in the electoral roll of the Local Authorities Constituencies.

"Hence, the provisions contained in the RP Act, 1950 does not provide for a remedy of appeal to challenge the inclusion of names in the electoral roll of the Local Authorities Constituency," the court said.

Rejecting the contention of respondents that petitions are not maintainable, the bench said, "The present writ petitions challenging the inclusion of the names of the persons in the electoral roll of the Local Authorities Constituency are held to be maintainable."

The bench then referred to Article 243-R of the Constitution of India, Section 352 of the Karnataka Municipalities Act and said, "Section 352 of the Act, 1964 is in consonance with Article 243-R(2)(a) of the Constitution of India."

"A bare reading of these provisions indicate that all the seats in Town Panchayat shall be filled by a person chosen by the direct election from the territorial constituency in the municipal area and the Government by nomination may provide for representation in a Town Panchayat of a person having special knowledge and experience in municipal administration and the proviso specifies that nomination of representative of the Government shall not have the right to vote in the meetings of the Municipality and the manner of election of the Chairperson of Municipality."

Relying upon the Supreme Court judgement in the case of People's Union for Civil Liberties and another –vs- Union of India (2003) 4 SCC 399, the court said:

"The elected members and nominated members cannot be said to be belonging to the same class since the fundamental difference is that elected councillors are elected to the Town Panchayat by a popular vote whereas nominated members are appointed by the Government and to mean every member includes nominated members would defeat the very purposes of election which is the essence of democracy."

This court while interpreting the word 'every member' must look into the provisions of the Constitution as a whole and favour the interpretation that does not render another provision redundant, otiose or superfluous, said the bench.

"Article 243-R of the Constitution of India and Section 352 of the Act, 1964 specifically prohibits the representative of the Government from voting in the meetings of the Municipality and the manner of election of the Chairperson of the Municipality," it added.

Then it observed,

"The very object of 74th Amendment inserting Article 243-R of the Constitution of India and object of the Act 1964, prohibiting the representatives of the Government to vote will be rendered redundant, if the persons nominated by the Government are permitted to vote in the election to the Local Authorities constituency."

The court further said that the intention of the law makers was very clear that the role of the persons nominated by the Government, having knowledge and experience in municipal administration or other related matters, is limited to the extent of advising the council for achieving the objects of the Act.

"...and that fiction cannot be extended beyond purpose for which the persons are nominated by the Government though they constitute the Town Panchayat along with the elected members," it added.

Accordingly, it allowed the petitions and declared the inclusion of the names of respondents in the electoral rolls of the local authorities constituency as ab initio void and unconstitutional and consequently the impugned electoral roll were quashed.

Case Title: A.V. GAYATHRI SHANTHEGOWDA v. ELECTION COMMISSION OF INDIA & others

Case No: W.P.NO.1850/2022

Citation: 2022 Livelaw (Kar) 460

Date of Order: 3RD DAY OF NOVEMBER, 2022

Appearance: KANTHARAJU, ADVOCATE FOR SURESH BABU B.N., ADVOCATE for petitioners; S.R. DODWAD, ADVOCATE FOR R-1; R. SREENIVASA GOWDA, AGA FOR R-2 & R-3; VIVEK REDDY, SENIOR COUNSEL FOR K.N. SUBBA REDDY, ADVOCATE FOR R-4 TO R-16.

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