J S BASAVARAJ Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioners have challenged in this petition the order passed by the Government (Annexure-D) postponing the election to the offices of the President and the Vice President on the ground that such an order is illegal and without jurisdiction. The facts relating to the order are as follows-: The petitioners and several others had filed their nominations seeking elections to the Doddaballapur Town Municipal council which consists of 23 members to be elected from 5 wards. As per the calendar of events, 29-4-1990 was the date of election. Unfortunately one of the candidates of Ward 2 died before the election. Accordingly, the election in Ward 2 was countermanded. The councillors to be elected from Ward 2 were 5 in number. As the election in Ward 2 was countermanded, the Returning Officer held election in the other wards, viz., Wards Nos. 1, 3, 4 and 5 and 18 persons came to be elected including the petitioneRs. The list of elected members was published by the Deputy Commissioner in the Gazette as required u/S.20 of the Karnataka Municipalities Act, 1964. When 18 persons out of 23 were declared elected, it was felt by the authorities that the council has got more than 2/3 majority as per law and thus the council was duly constituted. It is not in dispute that under S.18(1)(a) of the Act the term of office of the councillors is 4 yeaRs. S.18 of the Act reads as follows:

(2.) On 16-5-1990 the Returning Officer issued calendar of events proposing to hold elections to the offices of the President and the Vice President, when 2/3 of the total number of members were available. As per the said calendar of events, the last date for filing nominations was 23-5-1990 and in the event of contest the election was to be held on 30-5-1990. When the election process had commenced, one of the candidates of Ward 2 along with others moved the Deputy Commissioner to postpone the elections to the offices of the President and the Vice President to be held on 30-5-1990. The Deputy Commissioner refused their request. At that stage the Government sent a general circular to all the municipalities. The said circular at Annexure-D was issued on 19-5-1990 to postpone the elections to the offices of the Presidents and the Vice Presidents of all the Municipalities in the State. This circular is the subject matter of this writ petition. Pursuant to the said circular at Annexure-D the elections to the offices of the President and the Vice President could not be held. No doubt, u/S.38 of the Act, the Government has got power to postpone the election. S.38 of the Act reads as follows:

(3.) Though the said circular at Annexure-D came to be challenged in this writ petition, the petitioners were not successful in getting an interim order staying Annexure-D. As there was no staying the said Circular at Annexure-D, the election in Ward 2 which was countermanded earlier was held on 17-6-1990 and the results were published in the Gazette as required u/S.20 of the Act, on 26-6-1990. A copy of the said publication is now made available by the learned Government Pleader. The correctness of the said publication is not disputed by either side.