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            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,

Bellary for Backward Class–B (Woman). The appellant contested

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

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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)

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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.

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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:

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“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

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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

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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:

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“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

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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.

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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.