VASANTHA BERNHARDT, 43 YRS vs. STATE OF KARNATAKA - BY ITS CHIEF SECRETARY

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Dated this the 21st day of June, 2016

Before

THE HON’BLE DR JUSTICE VINEET KOTHARI

Writ Petitions 12571 / 2016 c/w 58110 - 58111 / 2015 (LB )

In WP 12571/2016 Between Anil Lobo, 43 yrs S/o Alex Lobo R/a Karinje Village Near Paper Mill Moodabidri, Mangalore Tq

Petitioner

(By Mr S Rajashekar, Adv.)

And

1 State of Karnataka – by its Chief Secretary

Vidhana Soudha, Dr Ambedkar Veedhi

Bangalore

2 Housing & Urban Development Department

(Establishment), Vidhana Soudha

Dr Ambedkar Veedhi, Bangalore

By its Under Secretary to Government

3 Karnataka State Election Commission

# 8, I Floor, KSCMF Building Annex.

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Cunningham Road, Bangalore 52

By Chief Election Commissioner

4 Deputy Commissioner & District

Election Officer, D K District

Mangalore

Respondents

(By Mr V Sreenidhi, AGA)

In WPs 58110-58111/2015

1 Vasantha Bernhardt, 43 yrs

S/o George Bernhardt

R/a # 3-206, Haleangadi

Mangalore Taluk, D K District

2 Vincent D’Souza, 37 yrs

S/o Mourice D’Souza

R.a House # 3-25, Tenkamijar

Mangalore Taluk, D K District

Petitioners

(By Sri S Rajashekar, Adv.)

And

1 State of Karnataka – by its Chief Secretary

Vidhana Soudha, Dr Ambedkar Veedhi

Bangalore

2 Housing & Urban Development Department

(Establishment), Vidhana Soudha

Dr Ambedkar Veedhi, Bangalore

By its Under Secretary to Government

3 Karnataka State Election Commission

# 8, I Floor, KSCMF Building Annex.

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Cunningham Road, Bangalore 52

By Chief Election Commissioner

Respondents

(By Sri V Sreenidhi, AGA for R1-2; Sri K N Phaneendra, Adv. for R3)

Writ Petitions are filed under Art.226/227 of the Constitution praying to quash the Note appended to the Notification dated 16.10.1995 – Annexure A, etc.

The Petitions coming on for preliminary hearing this day, Court made the following: ORDER

Mr S Rajashekar, Adv. For Petnr. Mr V Sreenidhi, AGA For Respdts. 1-2 Mr K N Phaneendra, Adv. for R3

1 Both these petitions are disposed of by a common order.

2 The petitioner Mr Anil Lobo who contested the elections for the post of Councilor of the Moodabidri Municipal Council, Mangalore Taluk has assailed the validity of the notification dated 16.10.1995 particularly, the Note appended to the said notification which gives classification of Category A and Category B of Backward Classes for the purpose of

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reservation of seats and offices of Chair Persons in the City Corporations and Municipal Councils.

3 The petitioner being a Christian, belongs to Category B but since he is an income tax assessee, he, as per the said Note 2, could not claim any reservation on the basis of his caste in the said elections. The relevant Note under Category B of the said notification dated 16.10.1995 is quoted below for ready reference.

No person falling under Category B shall be entitled to the benefit of reservation in the seats and offices of Mayor of City of City Corporations President – Municipal Councils/City Municipal Councils/Town Panchayats

(i) He/She or either of his/her: parents/guardian/his or her spouses is a Class I or Class II Officer in the service of the Government or holds an equivalent post in public section undertaking of an employee under a private employer and draws a salary: which is not less than of a Class II Officer (initial stage of the pay scale of Rs.2050-3950)

(ii) He/She or either of his/her parents/guardian his or her spouse is an income tax assessee or wealth tax assessee

(iii) He/She or either of his/her parents or guardian or his or her spouse is assessed to sales tax

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(iv) He/She or either of his/her parents/guardian his or her spouse or both together owns more than 8 hectares of rain fed or dry land or its equivalent.

4 It was also submitted at the bar by learned counsel for the petitioner that even though he was elected as a Councilor but upon the Election Petition filed by the defeated candidate Mr K Krishnaraj Hegde, MFA 10283/2013, came to be allowed by the learned Single Judge of this Court on 10.3.2015 in following terms:

HOUSING AND URBAN DEVELOPMENT SECRETARIAT

NOTIFICATION NO.HUD 636 MLR 95 BANGALORE, DATED 16.10.1995

Note: …….. (QUOTED ABOVE)

18 In page 15 of the said notification, Christians and Jains (digambaras) would come under ‘B’ category of backward class. Admittedly the petitioner- Krishnaraj Hegde is a Jain (Digambara), and the 1st respondent is a Catholic Christian. But the note appended to the said notification in page 15 excludes certain persons from B category from contesting an election to the Town Municipality or City Municipality. If a person is an income tax assessee or sales tax assessee, or his spouse is a Class I or II officer in the service of the Government, such person would be disqualified from contesting the said election.

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19 The note appended to the said notification is in page 15 and the same is extracted below:

(not quoted here as already quoted above)

20 Column No.(ii) in the note appended to the gazette notification clearly disqualifies a person belonging to category B from contesting as a candidate for the post of councilor of a City Municipal/Town Municipal Council or Town Panchayath in Karnataka, if he or she is an income tax or sales tax assessee. It is the assertion of the petitioner both in the election petition as well as his oral evidence that the 1st respondent was an income tax and sales tax assessee as on the date of filing of the nomination. What is held by the learned judge of the Election Tribunal is that the petitioner had not raised his little finger when the nomination of the 1st respondent was taken up for scrutiny by the returning officer.

The appeal is allowed with costs. The order dated 11.11.2013 passed in Election Petition No.1/13 pending on the file of Senior Civil Judge, Karkala, upholding the lection of the 1st respondent from Ward No.21 of Moodabidri Town in the election held on 7.3.2013 is set aside. Consequently the election of the 1st respondent, Mr Anil C Lobo as Councilor to Town Municipal Council, Moodabidri is set aside with immediate effect.

Registry to send a copy of the operative portion of the order to the Deputy Commissioner, Dakshina Kannda District immediately.

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after the said judgment was pronounced against him by the learned Single Judge of this Court, it appears that petitioner has filed the present writ petition in this Court on 8.3.2016 challenging the aforesaid condition itself in the notification dated 16.10.1995.

5 Having heard the learned counsel for parties, this Court is of the clear opinion that the present writ petitions are devoid of any merit. Firstly, the challenge has been laid to a Notification of 1995 after about twenty years of its existence. For good twenty years, the said notification making out this reasonable classification of different people belonging to backward classes dividing them into two categories, Category A and Category B, has held the field. Secondly, this Court does not find any merit in the contentions raised by the petitioner because the Note of Category B reproduced above, clearly makes a reasonable classification of persons belonging to higher echelons in the Backward Classes viz., that if the candidate concerned or his or her parents or spouse is a Class I or Class II government servant or he is an income tax or wealth tax assessee or owns more than 8 hectares of rain fed or dry land. This obviously indicates

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that the creamy layer of Category B caste people were intended to be given no benefit by way of any separate reservation, as stated in the notification dated 16.10.1995. The petitioner who is admittedly an income tax assessee, seeks to challenge this condition because that has resulted in he being not allowed to contest the said election.

6 This Court does not find any ground to hold this condition to be falling foul of Art.14 of the Constitution of India or that any unreasonable classification is made by the Legislature while issuing the notification dated 16.10.1995. The nexus with the object sought to be achieved by this classification is obvious and writ large on the face of it and therefore, the petitioner obviously does not fall within the category of persons belonging to Category B who can claim reservation for the post of Mayor or President of Municipal Corporation as per the said notification in view of the conditions or exceptions carved out in the form of Note to the said notification. The writ petitions are thus, found to be devoid of merit and are liable to be dismissed.

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Accordingly, the writ petitions are dismissed.

Sd/- Judge