04 Jan 2121

The state government is required to hold elections can reconstitute the council in terms of Section 358 of the Karnataka Municipalities Act, 1964 - Karnataka High Court

Case : Smt. Kalpana Manjunath and Ors. v. State of Karnataka and Anrs. Writ Petition No. 11725 of 2020 and Writ Petition No. 6398 of 2020

Court : Karnataka High Court

Bench : Justice R. Devdas

Decided on : 04 Jan 2121

Relevant Statutes

 Sections 11, 13 and section 358 to 362 of the Karnataka Municipalities Act, 1964

Brief Facts and Procedural History

1. The Petitioners are the elected member of the Arashinakunte gram panchayat and Vajarahalli gram panchayat. The state government issued a preliminary proclamation under Karnataka Municipalities Act, 1964 and intending to agglomerate the existing Nelamangala town municipal council with Arashinakunte gram panchayat, Basavanahalli gram panchayat and others to constitute a city municipal area to be known as Nelamangala city municipal council. After the new CMC was constituted, the deputy commissioner sent a communication dated 13.03.2020 to the tahsildar stating that the post of president of Nelamangala tmc has been earmarked for the general category and the post of vice-president has been reserved for the general (woman) category.

2. One W.P. No.6398/2020 was filed on 18.03.2020  which seeks a declaration that Nelamangala tmc stands dissolved which results in quashing of the circular dated 16.03.2020 issued by the tahsildar and also a direction seeks to the authorities to conduct elections to the newly constituted Nelamangala CMC and until then appoint the deputy commissioner as the administrative officer of Nelamangala CMC.  

3. It was stated by the petitioner that no prior notice was ordered in W. P. No.6398/2020. The state government issued an order dated 11.05.2020  which directing the authorities to initiate a ward-wise identification process of the category of population to fix the roster in the reservation. Further, the state government appointed an administrator and the state government directed that the members of the former Nelamangala tmc shall continue to hold their position as councillors of the newly constituted CMC areas.

The Issue of the Case

Whether the former members of the tmc along with persons nominated by the government would constitute a city municipal council or a general election is required to be held to reconstitute the municipal council as per 358 of the Karnataka Municipalities Act, 1964?  

The Observations of the court

1. The Honourable Karnataka High Court observed that if the only area constituting Nelamangala tmc was upgraded as city municipal area, there is no reason to contemplate holding a fresh general election to reconstitute the municipal council. The honourable high court referred to two provisions i.e. Section 361 and 362 of Karnataka Municipalities Act, 1964   and stated that it did not contemplate reconstitution of the council, where the smaller urban area is converted into larger urban area section 372 of the Karnataka Municipalities Act, 1964, where the panchayat is converted into a smaller urban area, the former gram panchayat cease to exist.

2. The Honourable Karnataka High Court observed that the provisions of Section 359 and 360 of Karnataka Municipalities Act, 1964 shall deemed to have been made by the smaller urban areas and the mandatory provision of section 358 Karnataka Municipalities Act, 1964 which requires the government to hold elections within a period of six months applies to chapter xvi of the Karnataka Municipalities Act, 1964. The honourable high court observed that under sections 359.360 and 361 of the Karnataka Municipalities Act, 1964 is made to constitute an interim municipal council which consists of the elected members of the gram panchayat to be headed by adhyaksha and upadhyaksha of the gram panchayat as president and vice president of the interim municipal council.

3. The Honourable Karnataka High Court observed that the former councillors of the Nelamangala tmc cannot content that they continue as councilors of the new cmc and also the nomination of one person each from the panchayat area will legitimately constitute a municipal council, but the nomination should not be in contradiction of article 243 r, article 243 t and article 243 u of the constitution. The honourable high court observed the delamination of the wards and fixation of the reservation of seats shall be in terms of section 13 of the Karnataka Municipalities Act, 1964 and also determine the number of councillors for holding elections for a new municipal council as per section11 of the Karnataka Municipalities Act, 1964.

4. The Honourable Karnataka High Court referred one judgment i.e. Vishwantah Akhandappa and Others vs. State of Karnataka and others, 1980  2 Kant LJ 398, it was held that the term of the interim municipal councillors as per section 358(2) of Karnataka Municipalities Act, 1964  shall come to end only when the first meeting of the new municipal council is held. Until the term as the state government did not hold elections, the government could not appoint an administrator. 

5. The Honourable Karnataka High Court observed that a person nominated by the state government can continue only till a council is reconstituted within a period of 6 months as per the provision of chapter xvi of the Karnataka Municipalities Act, 1964. The Honourable Karnataka High Court held that the state government is required to hold elections to Nelamangala CMC and reconstitute the council according to section 358 of Karnataka Municipalities Act, 1964

The Decision Held by the Court

The writ petition is allowed and the state government is directed to hold elections to the Nelamangala CMC within an outer limit of two months from the date of receipt of a copy of this order.

Click here to view/download the judgement >