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Judgment
Krishna S Dixit, J
I. Petitioner who claims to be ‘a social entrepreneur and diligent citizen of Karnataka’ is knocking at the doors of Writ Court with the following substantive prayers:
“A) Issue a writ in the nature of Quo Warranto against the Respondent Nos.4 to 37 and require them to show what authority they have to continue to hold office as Councillors of BBMP in the wake of their failure to comply with the provisions of Section 19 of the Karnataka Municipal Corporations Act, 1976.
B) Alternatively, issue a writ in the nature of Mandamus directing the Respondent No.3 to consider the Petitioner's representations at Annexures 'F' and 'J' and take necessary action as prescribed by Section 19(2) of the Karnataka Municipal Corporations Act, 1976, in an expeditious manner and without any further delay.”
II. As the above prayers make out, learned counsel for the petitioner submitted that all the private respondents are liable to be ousted from the office of Councillors of the Respondent-Municipal Corporation i.e., BBMP since their membership ceased on its own, in terms of Sec.19 of the Karnataka Municipal Corporations Act, 1976, they having failed to declare all assets owned by them and any members of their family. He further submitted that at least in the alternate, the official respondents are liable to be mandamussed to consider his client’s representations, copies whereof avail at Annexure-F dated 10.03.2018 & Annexure-J dated 19.02.2019, wherein he has requested ‘to immediately disqualify all the Councillors considering violation under KMC Act 1976 …’ and ‘to immediately stop the disqualified Councillors from holding the elected office…’. He added that unless the Constitutional Courts do something pungent, the official respondents would not wake up from their deep slumber.
III. After service of notice, the 1st respondent-State is represented by the learned AGA. The 2nd respondent-BBMP & the 3rd respondent-Regional Commissioner are represented by their Panel Counsel, who has filed the Statement of Objections on 02.12.2019, resisted the petition, although not much disputing its averments that none of the Councillors who happen to be the private respondents herein has filed the declaration in terms of Sec.19(1) of the 1976 Act. Similarly, several of the respondent-Councillors being represented by their private counsel, made submission that a few of them have filed belatedly. Learned counsel Mr.H.Sunil Kumar appearing for a few respondents submitted that the petition has become infructuous, the prescribed statutory tenure of all the Councillors who were elected in the very same election process having expired by efflux of time. So contending, they sought dismissal of the petition.
IV. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is broadly in agreement with the submission made on behalf of the respondents and therefore, the matter is liable to be disposed off as having become infructuous.
V. The above being said, some observations need to be made against the erring officials in the light of following discussions.
(a) The provisions of section 19 of the 1976 Act being relevant, are reproduced below:
“19. Declaration of assets etc.- (1) Every councillor [referred to in clause (a) of sub-section (1) of section 7] shall, not later than one month after the commencement of his term of office and in the same month of each succeeding year, file with the Mayor a declaration of all assets owned by him and any member of his family. Such declaration shall form part of the corporation records. 1. Inserted by Act 35 of 1994 w.e.f.1.6.1994.
(2) If any councillor fails to file the declaration referred to in sub-section (1) or files the same knowing it to be false or incorrect he shall cease to be a councillor.
(3) Any question whether disqualification under sub-section (2) has occurred shall be decided, on reference made by the corporation, by Government and the decision of Government thereon, shall be final.
Explanation.- For purposes of this section family means the spouse and dependant children of the councillor.”
Sub-section (1) of section 19 mandates that every Councillor shall file with the Mayor of the Corporation a declaration of all assets owned by him and his family members. This has to be done within one month of his assuming the office after election. Sub-section (2) causes automatic cessation of Councillorship should he fail to file such declaration or that the one filed by him is false or incorrect. Sub-section (3) provides that if any question as to cessation of Councillorship should arise, the same shall be finally decided by the government on a reference being made by the corporation. Obviously, this provision has been enacted to bring probity & transparency of political functionaries in the local bodies.
(b) It is not in dispute that except one Councillor, none had filed the declaration in time although a few have done it after brooking delay. It is true that the electoral term itself having expired by efflux of time, the question whether they incurred disqualification of the kind now largely pales into insignificance, as rightly contended by both the learned AGA and Mr.H.Sunil Kumar. They are also right in telling to the court that Bruhat Bengaluru Mahanagara Palike Act, 2020 which has come into force w.e.f 21-12-2020, has done away with the disqualification clause enacted in sub-section (2) of section 19 of the 1976 Act, although the obligation to file the declaration does continue, as before. It is also relevant to mention that section 432 prescribes penalties inter alia for voting or acting as Councillor despite ceasing to be one. It is not in dispute that all the Councillors except one have voted and acted as Councillors despite incurring disqualification in terms of Section 19(2) of 1976 Act. Therefore, all they are liable to be prosecuted under sub-section (1) of section 432 which reads as under:
“432. Penalties for voting as councillor, acting as Mayor, Deputy Mayor when not entitled and for failure to hand over documents.-
(1) If a councillor votes in contravention of section 80 or if any person acts as a councillor knowing that under this Act or the rules made thereunder he is not entitled or has ceased to be entitled to hold such office, he shall, on conviction, be punished with fine not exceeding two hundred rupees for every such offence.”
(c) The larger question which merits due consideration at the hands of this court is on the culpable lapse attributable to the then Commissioners of BBMP who failed to refer the matter for the consideration of the government in terms of sub-section (3) of section 19 of the 1976 Act, despite two representations made by the petitioner who is a resident of Bangalore city and who has vital interest in the discharge of functions by the Corporation & its functionaries, in accordance with law and therefore, he has locus standi in the matter. Such a grave lapse of permitting disqualified Councillors to act and vote in the Corporation cannot go with impunity. The officials, more particularly, those in the higher echelon of governance are accountable and therefore, are liable to be proceeded against in accordance with law.
In the above circumstances, this petition is disposed off with the following directions:
[i] The respondent-Corporation is directed to initiate legal action against disqualified Councillors who have voted & acted in contravention of the provisions of section 432 of the 1976 Act, forthwith, after accomplishing the necessary prerequisites & formalities.
[ii] The respondent-government is directed to take all steps for constituting disciplinary inquiry against such of the Commissioners of respondent-Corporation who failed to refer the question of cessation/disqualification of Councillors in terms of section 19(3) and further, allowed them to function as such in violation of section 432 of the 1976 Act.
[iii] The compliance report in terms of [i] & [ii] above shall be filed with the Registrar General of this Court, within an outer limit of three months.