A bench comprising of the Chief Justice of Karnataka Abhay S. Oka and Justice S. Vishwajith Shetty adjudicated upon multiple petitions concerning the general elections of the Bruhat Bengaluru Mahanagara Palike which is a Municipal Corporation constituted under Sections 6 and 7 of the Karnataka Municipal Corporations Act, 1976.
The term of the municipal body is for Five years from the date appointed for its first meeting. The term of the body expired on 10th September 2020 and the election to constitute Bruhat Bengaluru Mahanagara Palike (BBMP) had to be before the expiry of its duration specified in clause (1) of Article 243U. The draft of the Ward-wise electoral rolls was published by the State Election Commission (for short ‘the SEC’) on 19th October 2020 and the final electoral roll was scheduled to be published on 30th November 2020.
The major controversy arose because of an Amendment to the sub-clause (a) of sub-Section (1) of Section 7 which provided that the number of elected Councillors of a Corporation shall not be less than thirty and more than two hundred as the Government may, by notification, determine. In the new Amendment, a proviso was added after sub-clause (a) of sub-section (1) of Section 7, providing that BBMP shall consist of not less than 225 but not more than 250 Councillors.
The Amendment Act also added sub-section (2A) to Section 21 providing that the State Government shall constitute a Delimitation Commission consisting of such number of members, as may be prescribed, to recommend the State Government the manner of delimitation of Wards in each Corporation. On 14th October 2020, the State Government issued a notification by exercising its power under proviso to clause (a) of sub-section (1) of Section 7 of the said Act of 1976 for determining the number of Councillors for BBMP. By the said notification, it was provided that the BBMP shall have 243 Councillors. Given issuance of the said notification, the State Government contended that the area within BBMP will have to be divided into 243 Wards.
The main question before the bench was whether the general election of BBMP which was due to be completed before 10th September 2020 is required to be held as per the provisions of the said Act of 1976 or as per the Amendment. If the general elections which ought to be completed as per the Constitutional mandate before 10th September 2020 will have to be held as per the Amendment Act, there is no possibility of the elections being held shortly. The reason is that the Delimitation Commission, which was recently constituted, has not yet submitted its recommendations for dividing the area of BBMP into 243 Wards. The said exercise would take considerable time, as earlier, there were 198 Wards. Then only the State Government would have to take an actual decision of dividing the area into 243 Wards after considering the recommendations which might be made by the Delimitation Commission.
Contentions by Petitioners
The petitioners contended that election to constitute a Municipality must be held before the expiry of its term of five years under clause (3) (a) of Article 243U of the Constitution. Further, it was contended that the Amendment is prospective and should not apply to an overdue election. Petitioners also pointed out that the State Government could not interfere with the process of election of BBMP given the Constitutional mandate
Contentions by Respondent
The Advocate General contended that The Bruhat Bengaluru Mahanagara Palike Bill (2020) was placed before the Councillors of the legislature and is a separate enactment. Pointing out that the extension was due to a recommendation by a standing committee for increasing the maximum number of wards to 250. The Amendment was brought in because of the recommendations of the Joint Select Committee and it could not be ignored.
The government defended the Amendment by stating that the citizens of Bengaluru should get a larger representation because the population has increased to more than 1.30 crores.
Then the Advocate General submitted that legislation can only be challenged on three grounds i) Lack of legislative competence, (ii) the legislation violates fundamental rights or any other Constitutional provision, and (iii) The legislation is manifestly arbitrary. Since none of the grounds was established, the Amendment Act could not be challenged by the Petitioners.
The court upheld the validity of the Karnataka Municipal Corporations (third Amendment) Act, 2020 but will only apply prospectively. Also, the bench held that the overdue elections of the Corporations must be held by giving effect to the provisions of the Amendment Act, the provisions thereof will infringe clause (3) (a) of Article 243U of the Constitution.
The court directed the State Government to publish the final notification of reservations as per clause (c) of sub-section (1) of Section 21 of the said Act of 1976 for 198 Wards as per the delimitation notification dated 23rd June 2020. The court also ordered the State Election Commission to hold the election of BBMP by publishing the election program within a maximum period of six weeks from the date on which final reservation Notification is published.
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