Bharati Reddy vs The State Of Karnataka

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURSIDCITON

CIVIL APPEAL NO._10587 OF 2017 (Arising out of SLP (Civil) No.17059 of 2017

SMT. BHARATI REDDY … APPELLANT

VERSUS

THE STATE OF KARNATAKA AND ORS. …RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

1. Leave granted.

2. The appellant was elected as a member of Zilla Panchayat,

Bellary from 13-Badanahatti Constituency, which was reserved

for General (Women) category in the election held on

20.2.2016. The State Government issued a notification dated

15.4.2016 reserving the post of Adhyaksha of Zilla Panchayat, Signature Not Verified

Bellary for Backward Class–B (Woman). The appellant contested Digitally signed by DEEPAK MANSUKHANI Date: 2017.08.22 17:17:27 IST Reason:

for the said office and was declared as elected. Respondents 6 2

to 9 are residents of Bellary district and were voters in the

election to the Zilla Panchayat in question. They filed Writ

Petition No.106417 of 2016 in the Dharwad Bench of Karnataka

High Court challenging the election of the appellant as the

Adhyaksha mainly on the ground that she does not belong to

backward class (B) and that she has contested the election on

the basis of a false caste certificate issued by the Tehsildar,

Kurugodu, Bellary. The appellant raised objection as to the

maintainability of the writ petition having regard to the bar

contained in Clause (b) of Article 243-O of the Constitution of

India. It was also contended that the aggrieved party has to

challenge the election by way of election petition before the

jurisdictional District Judge.

3. Learned Single Judge by his order dated 21.10.2016 dismissed

the writ petition on the ground of maintainability in view of the bar

contained in Clause (b) of Article 243-O of the Constitution. Learned

Single Judge also referred to Rule 7 of the Karnataka Panchayat Raj

(Election of Adhyaksha and Upadhyaksha of Zilla Panchayat) 3

Rules, 1994 providing for the filing of the election petition before

the jurisdictional District Judge by an aggrieved party.

4. Respondents 6 to 9 challenged the said order by filing Writ

Appeal No.101459 of 2016 before the Division Bench. The

Division Bench by order dated 5.6.2017 set aside the order of

the learned Single Judge by holding that the writ petition was

maintainable. The Division Bench remanded the matter to the

learned Single Judge for fresh disposal of the case, keeping

open all the other questions. The appellant has challenged the

legality and correctness of the said order in this appeal.

5. Appearing for the appellant, Shri Mukul Rohatgi, learned

senior counsel, submits that the writ petition filed by

respondent Nos. 6 to 9 challenging the election of the appellant,

was not maintainable in view of the express bar contained in

Article 243-O of the Constitution of India. It is submitted that

the only remedy available to the aggrieved party is to file an

election petition before the jurisdictional District Judge. In this

connection, he has relied upon the decision of this Court in

Charan Lal Sahu v. K.R. Narayanan (1998) 1 SCC 56. 4

6. On the other hand, Dr. Rajiv Dhawan, learned senior

counsel, appearing for respondents 6 to 9 submitted that

respondents 6 to 9 were the voters in the election to the Zilla

Panchayat. They cannot maintain an election petition as they

are not the members of the Zilla Panchayat. If the writ petition

is dismissed on the ground of maintainability, the voter, who is

not a member of Zilla Panchayat and aggrieved by the election

of the Adhyaksha, will remain remediless. He submits that

judicial review is the basic structure of the Constitution.

7. We have carefully considered the submissions of the

learned senior counsel for the parties. The short question for

our consideration is whether the writ petition filed by the

voters, who are not the members of the Zilla Panchayat,

challenging the election of the Adhyaksha of the Zilla Panchayat

is maintainable.

8. Part IX containing Articles 243, 243-A to 243-O was

inserted by the Constitution 73rd Amendment Act, 1992. Article

243-O which is relevant for this case reads as under: 5

“243-O. Bar to interference by courts in electoral matters – Notwithstanding anything in this Constitution-

(a) The validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) No election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State.”

9. A bare reading of sub-section (b) of Article 243-O would

show that election to any panchayat cannot be called in

question except by an election petition presented to such

authority and in such manner as is provided for by or under any

law made by the Legislature of a State.

10. Adhyaksha and Upadhyaksha of the Zilla Panchayat are

elected in accordance with Section 177 of the Karnataka Gram

Swaraj and Panchayat Raj Act, 1993 and Rule 7 of Karnataka

Panchayat Raj (Election of Adhyaksha and Upadhyaksha of Zilla

Panchayat) Rules, 1994. The said Rule reads as under:

“7. Election dispute petition: (1) any member of Zilla panchayat, in whose 6

jurisdiction the Zilla Panchayat lies, can question the election of Adhyaksha and Upa-Adhyaksha before the said District Judge, within 15 days from the date of declaration of election result by depositing Rs 2,000/- alongwith an Election Petition.”

It is clear from this Rule that a non-member of Zilla Panchayat

cannot maintain an election petition.

11. Learned senior counsel for the appellant contended that in

spite of Article 226 of the Constitution, the High Court had no

jurisdiction to entertain the writ petition in view of the bar

contained in clause (b) of Article 243-O of the Constitution. It

was argued that the aggrieved person will have to avail himself

the remedy provided in Rule 7 and cannot approach the High

Court in the first instance under Article 226 of the Constitution

of India.

12. We do not find any merit in this contention. We are of the

view that a voter in a particular panchayat cannot be rendered

remediless if he is aggrieved by the election of the Adhyaksha

of the Panchayat. In His Holiness Kesavananda Bharati

Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 7

225, a thirteen Judge Bench of this Court held that Article 368

of the Constitution does not enable the Parliament to alter the

basic structure or framework of the Constitution. The basic

structure of the Constitution could not be altered by any

constitutional amendment and it was held in unambiguous

terms that one of the basic features is the existence of

constitutional system in judicial review. This view was followed

by a Constitution Bench in Minerva Mills Ltd. and Ors. v.

Union of India and Ors. (1980) 3 SCC 625. In L. Chandra

Kumar v. Union of India and Ors. (1997) 3 SCC 261, a seven

Judge Bench of this Court has held that jurisdiction conferred

upon the High Courts under Articles 226/227 of the Constitution

and upon the Supreme Court under Article 32 of the

Constitution is a part of the inviolable basic structure of our

Constitution. While this jurisdiction cannot be ousted, other

courts and tribunals may perform a supplementary role in

discharging the powers conferred by Articles 226/227 and

Article 32 of the Constitution of India. It has been held as

under:

8

“We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.”

In I.R. Coelho (dead) by Lrs. v. State of Tamil Nadu (2007)

2 SCC 1, a Bench of nine Judges has again held that power of

judicial review is the part of the basic structure of the

Constitution. The power to amend cannot be equated with the

power to frame the Constitution.

13. It is thus clear that power of judicial review under Articles

226/227 of the Constitution is an essential feature of the

Constitution which can neither be tinkered with nor eroded.

Even the Constitution cannot be amended to erode the basic

structure of the Constitution. Therefore, it cannot be said that

the writ petition filed by respondent Nos. 6 to 9 under Article

226 of the Constitution is not maintainable. However, it is left to 9

the discretion of the court exercising the power under Articles

226/227 to entertain the writ petition.

14. In Charan Lal Sahu (supra) relied upon by the learned

senior counsel, the question for consideration was

maintainability of an election petition presented by a candidate

challenging the election to the Office of the President of India

who has not been duly nominated under Section 14A of the

Presidential and Vice-Presidential Elections Act, 1952. This

decision has no application to the facts of the present case.

15. As noticed above, though respondent Nos. 6 to 9 are the

voters are not the members of the Zilla Panchayat. They are

aggrieved by the election of the appellant to the office of the

Adhyaksha. They cannot challenge the election of the appellant

to the office of Adhyaksha by filing an election petition as they

are not the members of the Zilla Panchayat in question. In our

view, a voter of the Zilla Panchayat who is not a member

cannot be denied an opportunity to challenge the election to the

office of Adhyaksha under Articles 226/227 of the Constitution. 10

Therefore, we hold that the writ petition filed by respondent

Nos. 6 to 9 before the High Court is maintainable.

16. The appellant was elected as Adhyaksha of the Zilla

Panchayat in the election held on 20.02.2016. As noticed

above, the Division Bench has remanded the matter to the

learned Single Judge for its disposal keeping open all other

contentions of the parties. Therefore, we request the learned

Single Judge of the High Court to dispose of the writ petition as

expeditiously as possible, preferably within four weeks from the

date of receipt of this order. Till the disposal of the writ

petition, we permit the appellant to perform the functions of

Adhyaksha of Zilla Panchayat, Bellary in accordance with law

and his continuation as such is subject to the result of the writ

petition. The appeal is disposed of accordingly.

17. There will be no orders as to costs.

…………………………………J. (J. CHELAMESWAR)

..………………………………J. New Delhi (S. ABDUL NAZEER) August 17, 2017.