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Judgment
These two writ petitions involving the common question of law were heard together and they are accordingly disposed of by this common judgment.
The primary question for consideration in these two writ petition is whether this Court should entertain the petitions which are purportedly filed as the public interest litigation.
The brief reference to the factual position would suffice.
The petitioners in W.P.No. 8003/2006 are the ex-corporator of the Belgaum Municipal Corporation, whereas the petitioners in W.P.No. 8004/2006 are the ex-corporators and the social workers of the Gulbarga City, They have filed these two writ petitions under Articles 226 & 227 of the Constitution by way of public interest litigation for issue of a writ of mandamus directing the respondents 1 to 3 to hold elections to the 4th respondent - Municipal Corporation after completion of the process of de-limitation/determination/constitution of wards as per the 2001 census as provided u/s 21(1) & (2) of the Act. It is averred in the petitions that as per the 2001 census the population of Belgaum Municipal area is 3,99,653 and the population of Gulbarga Municipal area is 4,22,569 and that in terms of Sections 21(1) & (2) of the Act, the number of wards and the number of Councillors is to be determined maintaining the ratio of the population between the number of Councillors and the number of wards shall so far as practicable be the same throughout the city, but now the respondents in violation of the said provision are hurriedly proceeding to hold elections to the corporation keeping the existing 58 and 55 wards without de-limiting the wards and that if this action of the respondents is allowed to continue, the very purpose of the enactment of the statute will be defeated.
The basis for filing the two petitions by the petitioners is Annexure-C, a letter written by the State Election Commission to the Deputy Commissioners of the two respective districts wherein it is stated, inter alia, that the Commission, has decided to hold the elections to the City Local bodies by the end of June 2006 and that due to constraint of time, the Government has decided to continue the existing wards without bifurcating or de-limiting the same. Further, since the Central Election Commission has already published the original voters list of 1.1.2006 on 29.4.2006 itself, by adopting the same, a direction was issued to prepare the voters list required for the local body elections. It is further indicated therein that since the elections are required to be completed by the end of June 2006, the voters list be prepared and printed within 22.5.2006. This is the basis for the petitioners to file these two writ petitions. Admittedly, Annexure-C dated 4.5.2006 is a letter or communication sent by the State Election Commission to the respective Deputy Commissioners of the District in the matter of holding elections for the local bodies. The said internal correspondence made between the State Election Commission and the Deputy Commissioners, is being annexed without even indicating as to how the petitioner came to obtain this and the other documents, namely, Annexure-B. Be that as it may. Annexure-C is the cause of action for the petitioner to approach this Court by way of public interest litigation.
Learned animal for the petitioners has vehemently contended that though the first respondent has issued directions as early as in the month of May 2005 to all the Deputy Commissioners of the State to complete de-limitation or wards of all the municipalities and corporations to hold the elections in the month of May and December 2006, but strangely without affecting the de-limitation of wards the respondents are hurriedly tried to hold the election which is illegal and improper and moreover it is in clear violation of the provisions contained in Section 21(1) & (2) of the Act. He further contended that the population of the Belgaum Municipal Corporation as per 2001 census is 3,99,653 and the corporation consisting of 58 members which were determined as per the 1991 census and the distribution of the population is done as per the 2001 census and amongst the existing 58 wards without following the ratio of the population of the wards as provided u/s 21 of the Act. He contended that in so far as the population of the Gulbarga Municipal corporation as per the 2001 census is 4,22,569 and the corporation consisting of 58 members which were determined as per the 1991 census and the distribution of the population is done as per the 2001 census amongst the existing 55 wards without following the ratio of the population of the wards as provided u/s 21 of the Act. While elaborating this submission, he contended that the provisions contained in Section 21(2) of the Act clearly prescribes the ratio between number of Councillors to be elected from each ward and the population of that ward so far as practicably be the same throughout the city but in respect of the wards in these two corporations there is huge difference between the population of different wards and that therefore the holding of the election without de-limiting the wards would cause great difficulty to the public/voters of the corporation. He contended that the distribution of the population in the existing wards of these two corporations has been done by the respondents without application of mind and the same is nightly irrational and arbitrary. He further contended that the action of the respondents holding the elections to the two corporations without completing de-limitation of wards as per the 2001 census would lead to imbalance of population and it would be difficult to provide proper facilities and basic amenities to all the public of the wards when there is huge difference in the population of wards.
We have also heard the learned State Counsel Sri. Venugopalagowda and he has commendably assisted us in disposing of these two matters.
The scope and ambit of the public interest litigation which has been summarised by the Apex Court in the case of Guruvayur Devaswom Managing Committee v. C.K. Rajan reported in AIR 2003 SCW 6039, reads as under:
The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by ''ignorance, indigence and illiteracy'' and other downtrodden have either no access to justice or had been denied justice. A new branch of proceedings known as ''Social Interest Litigation'' or ''Public Interest Litigation'' was evolved with a view to render complete justice to the aforementioned classes of persons. It expanded its wings in the course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained in keeping with the current accent justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. The Court in pro bono publico proceedings intervened when there had been callous neglect as a policy of State, a lack of probity in public life, abuse of power in control and destruction of environment. It also protected the inmates of persons and homes. It sought to restrain exploitation of labour practices. The Court expanded the meaning of life and liberty as envisaged in Article 21 of the Constitution of India. It jealously enforced Article 23 of the Constitution, Statutes were interpreted with human rights angle in view. Statutes were interpreted in the light of international treaties, protocols and conventions. Justice was made available having regard to the concept of human right even in cases where the State was not otherwise apparently liable. The people of India have turned to Courts more and more for justice whenever there had been a legitimate grievance against the State''s statutory authorities and other public organizations. People come to Courts as the final resort, to protect their rights and to secure probity in public life. Pro bono publico constituted a significant state in the present day judicial system. They, however, provided the dockets with much greater responsibility jbr rendering the concept of justice available to the disadvantage sections of the society, Public interest litigation has come to stay and its necessity cannot be overemphasized. The Courts evolved a jurisprudence of compassion. Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice. But with the passage of time, thing started taking different shapes. The process was sometimes abused. Proceedings were initiated in the name of public interest litigation for ventilating private disputes. Some disputes were publicity oriented. A balance was, therefore, required to be struck. The Courts started exercising greater care and caution in the matter of exercise of jurisdiction of public interest litigation. The Court insisted on furnishing of security before granting injunction and imposing very heavy costs when a petition was found to be bogus. It took strict action when it was found that the motive to file a public interest litigation was oblique.
The principles evolved by the Supreme Court in regard to public interest litigation may be suitably summarized as under:
(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises.
(ii) Issues of public importance, enforcement of fundamental rights of large number of public vis-a-vis the constitutional duties and Junctions of the State, if raised, the Court treat a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings.
(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial.
(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, depraved, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional legal right.
(v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Govt. from raising the question as to the maintainability of the petition.
(vi) Although procedural laws apply on PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depend on the nature of the petition as also facts and circumstances of the case.
(vii) The dispute between two waning groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation.
(viii) However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for redressal of the personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice.
(ix) The Court in special situations may appoint Commission, or other bodies for the purpose of investigating into the allegations and findings out facts. It may also direct management of a public institution taken over by such Committee. The Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people from being violated,
(x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to Article 142 of the Constitution of India.
(xi) Ordinarily the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or a Statutory Rule.
The scope of public interest litigation in view of the above and some other decisions of the Apex Court has its own limitations. The Court must be careful to see that the petitioners who approach the court is acting bonafide and not for personal gain or private motive or political motivation or other oblique consideration. The court shall not allow its process to be abused for oblique considerations or political motivations. It has to be extremely careful and conscious to see that under the guise of redressing the public grievance, it does not encroach upon the sphere reserved by the constitution to the executive and the legislature. It is to be used as an effective weapon in the armory of law for delivering the social justice to the citizens. It should be aimed at redressal of genuine public wrongs or public injury. The public interest litigations means the legal action initiated in a court of law for the enforcement of public interest in which public have some interest by which their legal rights or liabilities are affected. In the instant case, the relief sought for by the petitioners in both the writ petitions would virtually amount to postponing the election, for which the preliminary stage of the preparation and publication of voters list has already commenced. That is to say, the preliminary stage of the process of election to the local bodies has already been started by the State Election Commission by sending the necessary communication to all the Deputy Commissioners in the State. The petitioners herein claimed to be either the excorporators or the social workers. Naturally, they have a political and private interest in the elections to be held for the two corporations. Be that as it may. Postponing of election of the local bodies besides being opposed to the constitutional mandate will certainly not be in the interest of the public. The importance of holding the elections at the regular intervals as envisaged under the constitution cannot be over emphasized. If the holding of the elections is allowed to be stalled or postponed, on the complaint of the petitioners, then grave injustice will be done to the thousands of voters who have a right to elect their representatives to the local bodies. It is also not free from doubt whether non-compliance of a provision of the Act being a ground for election petition in terms of Section 35(l)(iv) of the Act, the writ petitions under Articles 226 & 227 of the Constitution would lie and the same could be entertained. The Hon''ble Supreme Court in the case of Election Commission of India Through Secretary Vs. Ashok Kumar and Others, , has observed in para 30 at page 2986 of the decision an under:
To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution. The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens pushes out Article 226 where the dispute takes the farm of calling in question an election (see para 25 of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by Invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities and knock the doors of the Courts when the election proceedings in question are over, Two prolonged attack on anything done during the election proceedings is to be avoided - one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.
10, Therefore, as rightly contended toy the learned State Counsel, the public interest lies in strengthening the democracy toy holding the elections to the local bodies and not by postponing or stalling the elections especially when the preliminary stage of the process of election has already started and in the face of the constitutional mandate for holding the elections within the prescribed period. The Division Bench of this Court in the case of Prof. B.K. Chandrashekar and Another Vs. State of Karnataka and Another, , speaking through, Justice Ashok Bhan as his Lordship then was, has held as under:
During the course of arguments we had asked Mr. Acharya, learned Counsel appearing for State Election Commission as to within how much time Election Commission would be able to hold elections, if the ordinance is given effect to. According to him, it will take in all atleast 7 months to hold the elections as fresh notifications u/s 5(1)(2) and (5) have to be issued. On the expiry of the period of five years, the present elected bodies would become functus officio. The Grama Panchayats will not be having any elected body which would result in break down of the democratic set up envisaged by the Constitution. In order to prevent such a situation & would be necessary to direct the respondents to hold elections to the Grama Panchayats in the State of Karnataka immediately. We are not holding that the State Legislature does not have the competence to amend Sections 4 and 5 of the Panchayat Raj Act. If it has the power to enact it has necessarily the power to amend those provisions as well. But as the amendment results in nullifying the Mandate of the Constitution of India specially when the process of election had begun, the same is held to be not applicable to the present elections to Grama Panchayats due to be held in the month of March/April 1999. If there is conflict between the mandatory provisions of the Constitution and the right of the State Legislature to enact laws which falls within its legislative competence and which results in nullifying the Mandate of the Constitution then in such a case provision of the Constitution would take precedence. If such a view is not taken then the Mandate of the Constitution can be flouted with impunity by the State Legislature on one pretext or the other. Constitution is Supreme and the lows by the legislature have to be enacted subject to the provisions of the Constitution of India and therefore subservient to it. Press note annexure ''B'' issued by the Election Commission attached in W.P.3826/99 is quashed.
The duration of five years as provided or prescribed for municipalities and the elections to the municipalities which includes municipal corporation are mandatorily required to be held within the period of five years. After completion of five years, fresh bodies or representatives have to be elected and constituted by holding the elections. The respondents cannot be directed to flout the mandate of the constitution by issue of a writ of mandamus to hold the elections within five years on the expiry of the term of the earlier municipal body. It would appear from Annexure-C that in order to obey the constitutional mandate, the respondents are in a hurry to hold the elections. This is very clear even from the documents annexed to the writ petitions, more particularly Annexure-C. If the elections are not held within the time stipulated under the constitution, it would certainly lead to the breach of the constitutional mandate. Besides, it would result in brake down of the democratic set up as envisaged under the constitution, A perusal of Article 243-U would show that the election to municipalities shall have to be held before the expiry of its duration of five years specified in Clause (1) and the respondents cannot be directed to postpone the elections which would be oppose to the constitutional mandate. In the instant case, as we have already stated, the State Election Commission has already taken preliminary steps for holding the election to the corporation by issuing the necessary instructions to all the Deputy Commissioners in the cities which is very clear from the contents of the letter Annexure-C. The Division Bench of this Court in the above decision has further observed at para 23 of the decision as under:
Commission had proposed to hold elections before the expiry of the term of the earlier panchayat in two phases and when was due to issue the calendar of events the Government proposed to make structural changes regarding the declaration of panchayat area, population criteria etc Can it be said that process of election had begun and therefore the ordinance would have no effect on the election due in the month of March/April 1999? It is to be seen that when the Commission was about to issue calendar of events, the ordinance was promulgated Supreme Court of India in N.P. Ponnuswami v. Returning Officer, Namakkal while considering as to when the ''elections'' commence, held that necessarily elections do not commence with the issue of the calendar of events only. It would depend upon the situation of facts of each case. While assigning meaning to the word ''ejection'' used in the context of Articles 324 and 329(b) of the Constitution it was held that the word ''election'' can be and has been property used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process. The relevant extract of the observations of the Supreme Court reads; (para 7)
It seems to me that the word ''election'' has been used in Part XV of the Constitution in the view sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression ''conduct of elections'' in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). That the word ''election'' bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most the books on the subject and in several cases dealing with the mater, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury''s Laws of England in the following passage see. P.237 of Halsburry''s Laws of England, Edn.2 Vol. 12 wider the heading ''commencement of the election'':
Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to being at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest in ''reasonably imminent''. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view, nor, again, does the nomination day afford any criterion. The election win usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when ''the conduct and management of an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case.
The discussion in this passage makes it clear that the word ''election'' can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.
The election Commission had taken all steps in connection with the preparation of polls and issue of notifications u/s 5(1) followed by the notifications by the Deputy Commissioner under Sections 5(2), 5(3) and 5(4). Election Commission had also issued the notification u/s 5(5) delimiting the Constituencies in each panchayat. In the context of the facts of this case, it cannot be said that the process of election would have begun only with the issuance of calendar of events. It is apparent that the Election Commission had taken all preparatory steps and the process of election had already been put in motion once the process of election begins, the election cannot be postponed. Elections to the Panchayats under the circumstances could not be postponed. As observed earlier the timings of the issuance of the ordinance is not mere coincidental Resulting effect of the ordinance is postponement of election to the Grama Panchayats in the State thereby flouting the mandate of the Constitution of India which cannot be countenanced or accepted under any circumstances. To that extent the ordinance has to be ignored.
It is thus clear from the above discussion that no element of public interest is involved in the petitions filed by the petitioners. May be their chances of getting elected in the election to foe held for the two corporations would be affected to a certain extent on account of the population ratio being not maintained with reference to each ward, But that by itself will be no ground to entertain the writ petitions by way of public interest litigation more so when the petitioners have an alternative efficacious remedy of taking such ground in the election petition. It may be stated even at the cost of the petitioners that the public interest lies in holding the elections as per the constitutional mandate at the earliest in order to maintain the democratic system. No doubt by holding the elections to the two corporations in the fact situation with the existing wards, would result in violation of the provisions of the constitution. But directing the respondents to postpone the elections till such time that the State Government would comply with the said statutory requirement would result in disobedience of the constitutional mandate, which is not permissible in law. Moreover, the alleged violation of the provision contained, in the statute would not in any way affect the interest of the public; that it may affect the interest of the candidates contesting the elections is no ground to entertain the writ petition under the PIL jurisdiction. Moreover, it is not as if the petitioners are not without any remedy. On the other hand as we have already stated the petitioners can certainly file the election petitions making this as one of the ground in the election petition. That is to say, the petitioners are not without any remedy because this would constitute one of the grounds in the election petition in terms of Section 35(1)(iv) of the Act. In this connection, a reference may be made to the decision of the Hon''ble Supreme Court in the case of Nanhoomal v. Hiramal reported in AIR 1975 SC 2141 wherein the Hon''ble Supreme Court has observed as under:
The only ground in the present case on the basis of which the election of the appellant was questioned is that there was a non compliance with the provisions of Rule 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provision of the Act does not ipso facto result in the election being set aside. That result can be set aside only if the Election Tribunal comes to the conclusion that the result of the election has been materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is cm exclusive one conferred on the District Judge. In the circumstances there was no room for the High Court exercising its powers under Article 226 n order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a mater within the exclusive jurisdiction of the District Judge.
As early as 1928 in its decision in Desi Chettiar v. Chinnasami Chettiar AIR 1938 Mad 1271 the Madras High Court observed:
It is clear that there is another side of the question to be considered, namely, the inconvenience to the public administration of having elections and the business of Local Boards held up while individuals prosecute their individual grievances. We understand the election for the elective seats in this Union has been held up since 31st May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere nominated fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal grievance is satisfied.
These observations were quoted with approved by this Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, . In that decision this Court arrived at the following conclusions;
(1) Having regard to the important functions which the legislature have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retracted or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election", and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person effected to call it in question, they should be brought up before the special tribunal by mans of an election petition and to be made the subject of a dispute before any court while the election is in progress.
In absence of any express provisions in the Act to the contrary these principles are applicable equally to cases of elections to local bodies also. This Court also pointed out that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. It referred to the decision in Wolverhampton New Water Works Co. v. Hawkesford (1859) 6 C.B. 336 where it had been held:
There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to''. and after referring to the provisions of the representation of the People Act pointed out that it will be a fair inference that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage. This Court also held that the word ''election'' connotes the entire procedure to be gone through to return a candidate whenever we talk of elections in a democratic country.
Therefore, the present petitions filed by the petitioners under the label of public interest litigation appears to be politically motivated and in not in the public interest. No public interest being involved in these two writ petitions filed by the petitioners by way of public interest litigation, they are not capable of being entertained under the PIL jurisdiction and hence they are liable to be dismissed in limine.
In the result, therefore these two writ petitions filed by the petitioners by way of public interest litigation are hereby dismissed. But in the circumstances of the case there is no order as to costs.