SMT. BHARATI REDDYversusTHE STATE OF KARNATAKA AND ORS.

                        [2017) 8 S.C.R. 859


                     SM~BHARATIREDDY                                  A
                                 v.
            THE STATE OF KARNATAKA AND ORS.
                 (Civil Appeal No. 10587 of 2017)
                        AUGUST 17,2017                                B
     [J. CHELAMESWAR AND S. ABDUL NAZEER, JJ.)
       Panchayats - Karnataka Gram Swaraj and Panchayat Raj
Act, 1993 - s.177 - Karnataka Panchayat Raj (Election of
Adhyaksha and Upadhayaksha of Zilla Panchayat) Rules, 1994 - C
r. 7 - Zilla Panchayat Elections - Election of. 'Adhayaksha ',
challenged u!Art.226 by the voters, who are not the members of the
Zilla Panchayat - Maintainability of - Single Judge ofHigh Court
dismissed the writ petition on the ground of maintainability in view
of the bar contained in cl.(b) of Art. 243-0 - Division Bench set
aside the order of the Single Judge and remanded back the matter D
for fresh disposal of the case - Appellant challenged the legality
and correctness of the Division Bench s order - Held: Power of
judicial review u/Art.2261227 is the part of the basic structure of
_the Constitution, which can neither be tinkered with or eroded -
 Therefore, it cannot be said that the writ petition filed by -r-espon- E
dents u/Art. 226 is not maintainable - Jn instant cau, Respondents
 cannot challenge the election of the appellant to the office of
Adhyaksha by filing an election petition as though they are voters,
 but not the members of the Zilla Panchayat in queslHm - However.
 a voter who is not a member cannot be denied opportunity to
 challenge the election to the office of Adhyaksha u!A.rt.2261227 of F
 the Constitution - Thus, writ petition filed by responde111ts before
 High Court is maintainable - Constitution of India - Arts.2261227,
 243-0.
      Judicial Review - Held: Power of judicial review. under
Articles 2261227 of the Constitution is an essential feature of the G
Constitution which can neither be tinkered with nor eroded -
Constitution of India - Arts.2261227.
  . Remedy - Panchayat Elections - Held.' A voter in a
-particular panchayat cannot be rendered remedi/ess if he is
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                                 859
860           SUPREME COURT REPORTS                      (2017) 8 S.C.R.


A aggrieved by the election of the Adhayksha of the Panchayat -
  Writ petition filed by voters u/Art.2261227 before High Court is
  maintainable - Constitution of India - Arts.2261227.
           Disposing of the appeal, the Court
             HELD: Whether the writ petition filed by the voters, who
B     are not the members of the Zilla Panchayat, challenging the
      election of the Adhyaksha of the Zilla Panchayat is maintainable.
         1. The appellant contended that inspite 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
C 243-0 of the Constitution. It was argued that the aggrieved
  person will have to avail himself the remedy provided in Rule 7
  of Karnataka Panchayat Raj (Election of Adhyaksha of
  Upadhyaksha of Zilla Panchayat),Rules, 1994 and cannot approach
  the High Court in the first instance under Article 226 of the
D Constitution of India. The contention is devoid of any merit. A
  voter in a particular panchayat cannot be rendered remediless if
  he is aggrieved by the election of the Adhayksha of the Panchayat.
  [Paras 11, 12) (864-C-DJ
            2. It is clear that power of judicial review under Articles
E     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 the
 F    discretion of the court exercising the power under Articles 226/
      227 to entertain the writ petition.[Para 131 [865-C-DI
            His Holiness Kesavananda Bharati Sripadagalvaru v.
            State of Kera/a and Anr. \1'.."73) 4 SCC 225 : [1973)
            Suppl. SCR 1 ; Minerva Mills Ltd. and Ors. v. Union
 G          of India and Ors. (1980) 3 SCC 625 : [19811 1 SCR
            206; L. Chandra Kumar v. Union of India and Ors.
            (1997) 3 SCC 261 : [19971 2 SCR 1186 ; I.R. Coelho
            (dead) by Lrs. v. State of Tamil Nadu (2007) 2 SCC 1 :
            [20071 1 SCR 706 - relied on.
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   SMT. BHARAT! REDDY v. THE STATE OF KARNATAKA                          861


      3. As noticed, though respondent Nos. 6 to 9 are the voters, A
but they 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. How- B
ever, 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. Therefore,
the writ petition filed by respondent Nos. 6 to 9 before the High
Court is maintainable. [Para 15) [865-F-G]
      Charan Lal Sahu v. K.R. Narayanan (1998) 1 SCC 56                  c
      : [1997) S Suppl. SCR 317- referred to.
                        Case Law Reference
[1997) S Suppl. SCR 317         referred to             Paras
[1973) Suppl. SCR 1             relied on               Para 12          D
[1981] 1 SCR 206                relied on               Para 12
[1997] 2 SCR 1186               relied on               Para 12
[2007) 1 SCR 706                relied on               Para 14
                                                                         E

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. l 0587
of2017.
     From the Judgment and Order dated 05.06.2017 of the High Court
ofKarnataka Circuit Bench at Dhanvad in WA No. 101459 of2016.            F
     Mukul Rohatgi, Sr. Adv., Lakshmi Narayana N., Ms. Rekha Patil,
H. Chandra Shekhar, Advs. for the Appellant.       ·
      Dr. Rajeev Dhawan, Sr. Adv, S. B. Malhpalhi, Sharan Gouda Patil,
S. Anand and Mis S-Legal Associates, Advs. for the Respondents.
                                                                         G
      The Judgment of the Court was delivered by
      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
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862            SUPREME COURT REPORTS                            [2017) 8 S.C.R.


A  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 to 9 are residents of Bellary district and were voters in
 B the election to the Zilla Panchayat in question. They filed Writ Petition
   No.I 06417 of 2016 in the Dharwad Bench of Karnataka High Court
   challenging the election of the appellant as theAdhyaksha 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
 C the maintainability of the writ petition having regard to the bar contained
   in Clause (b) of Article 243-0 of the Constitution oflndia. 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 dated21.10.2016 dismissed
 D the writ petition on the ground of maintainability in view of the bar
   contained in Clause (b) of Article 243-0 of the Constitution. Learned
   Single Judge also referred to Rule 7 of the Karnataka Panchayat Raj
   (Election of Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules,
   1994 providing for the filing of the election petition before the jurisdictional
   District Judge by an aggrieved party.
 E
            4. Respondents 6 to 9 challenged the said order by filing Writ
      Appeal No.101459 of2016 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
 F    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 petitJou filed by respondent Nos. 6 to 9
   challenging the election of the appellant, was not maintainable in view of
 G the express bar contained in Article 243-0 of the Constitution oflndia.
   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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   SMT. BHARAT! REDDY v. THE STATE OF KARNATAKA                            863
                [S. ABDUL NAZEER, J.]

         6. On the other hand, Dr. Raj iv Dhawan, learned senior counsel, A
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.
Ifthe 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 B
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 C
 Zilla Panchayat is maintainable.
       8. Part IX containing Articles 243, 243-A to 243-0 was inserted
by the Constitution 73n1 Amendment Act, 1992. Article 243-0 which is
relevant for this case reads as under:
                                                                           D
      "243-0. Bar to interference by courts in electoral matters -
      Notwithstanding anything in this Constitution-
       (a) The validity of any Jaw relating to the delimitation of
           constituencies or allotment of seats to such constituencies
           made or purporting to be made under article 243K, shall not E
           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 Jaw
            made by the legislature of a State."                           F
       9. A bare reading of sub-section (b) of Article 243-0 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            G
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:
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864            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A           "7. Election dispute petition: {I) any member of Zilla panchayat,
            in whose jurisdiction the Zilla Panchayat lies, can question the
            election ofAdhyaksha and Upa-Adhyaksha before the said District
            Judge, within 15 days from the date of declaration of election
            result by depositing Rs 2,0001- alongwith an Election Petition."
B
            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 ofArticle 226 of the Constitution, the High Court had no jurisdiction
 c    to entertain the writ petition in view of the bar contained in clause (b) of
      Article 243-0 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.
D          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 B/iarati Sripadagalvaru v. State of
   Kera/a and Anr. (1973) 4 SCC 225, a thirteen Judge Bench of this
   Court held that Article 368 of the Constitution does not enable the
 E 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
 F Mills Ltd. and Ors. v. Union ofIndia and Ors. ( 1980) 3 SCC 625. In
   L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261, a
   seven Judge Bench o( 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
 G 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:
             "We, therefore, hold that the power of judicial review over
             legislative action vested in the High Courts under Article 226 and
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   SMT. BHARAT! REDDY v. THE STATE OF KARNATAKA                              865
                [S. ABDUL NAZEER, J.]

      in the Supreme Court under Article 32 of the Constitution is an A
      integral and essential feature of the Constitution, constituting part
      of its basic structure. Ordinarily, therefore, the power of High
      Courts and the Supreme Court tq test the,i;onstitutional validity of
      legislations can never be ousted or exc1l'.Jed."
      In I.R. Coelho (dead) by Lrs. v. State of Tamil Nadu (2007) 2 B
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 c
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 the discretion of the court exercising the power
under Articles 226/227 to entertain the writ petition.                  D
       14. In Charan La/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
l 4A of the Presidential and Vice-Presidential Elections Act, 1952. This     E
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 F
 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.
 Therefore, we hold that the writ petition filed by respondent Nos. 6 to 9 G
 before the High Court is maintainable.
        16. The appellant was elected asAdhyaksha 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 H
866            SUPREME COURT REPORTS                         [2017] 8 S.C.R.


· A 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
    ofreceipt of this order. Till the disposal of the writ petition, we permit
    the appellant to perform the functions ofAdhyaksha of Zilla Panchayat,
    Bellary in accordance with law and his continuation as such is subject to
  B the result of the writ petition. The appeal is disposed of accordingly.
             17. There will be no orders as to costs.


      Ankit Gyan                                             Appeal disposed of.