1. At Kanakapura town or Bangalore District, there is a Town Municipal Council (hereinafter referred to as ‘the T.M.C’) constituted and functioning under the provisions of the Karnataka Municipalites Act, 1964 (Karnataka Act No. 22/64) (hereinafter referred to as ‘the Act’). In Notification No. HUD 32 TML 78 dated 10-3-1978, Government of Karnataka, in exercise of the powers conferred on it by S. 13 of the Act, issued a preliminary or draft Notification proposing to determine the territorial constituencies of the T.M.G as set out in that Notification. On a consideration of the objections if any filed, Government in its Notification No. HUD 32 TML 78 dated 25-4-1978 determined the territorial constituencies of the T.M.C In the said Notification, the T.M.C was divided into 4 Divisions consisting of 19 members to be elected from various divisions as detailed hereunder:—

Division No. No. of seats allotted. No. of seats reserved for S.C No. of seats reserved for women. I 5 - 1 II 5 1 - III 4 1 - IV 5 - 1

2. On the basis of the aforesaid determination of the constituencies, action was taken by the authorities for holding elections to the T.M.C On 26-4-1978, respondent No. 2 issued the calendar of events specifying the following dates for holding elections to the T.M.C:

1) 26-4-78 to 3-5-78 Receipt of nominations. 2) 5-5-78 Scrutiny of nominations. 3) 8-5-78 Last date for withdrawal of nominations. 4) 28-5-78 Date of poll. 5) 29-5-78 Scrutiny and counting of votes.

3. In response to the aforesaid calendar of events, petitioner No. 1 and several others filed their nominations from the various Divisions of the T.M.C At the time of scrutiny, the nomination paper of petitioner No. 1 and several others which were found to be valid, were accepted by respondent No. 2. On the last day for withdrawal of nominations, petitioner No. 1 and several others did not withdraw their nominations and their number being in excess of the number of seats of the four Divisions, a poll had to be held on 28-5-1978. But before that i.e on 25-5-1978, Government of Karnataka in exercise of the powers conferred on it by sub-sec. (1) of S. 38 of the Act by Notification No HUD 25 CGL 78 postponed the poll scheduled to be held on 28-5-1978 to the Kanakapura and other Town Municipal Councils in the State. On 2-7-1977, Government in supersession of the earlier Rules promulgated the Karnataka Municipalities (Election of Councillors) Rules, 1977 making detailed provisions for elections to the City/Town Municipal Councils. In Notification No. HUD 59 LRB 78 dated 27-3-1979 (Exhibit C), Government in exercise of the powers conferred by the aforesaid provision, directed that the calendar of events issued for the purpose of holding elections to the Municipalities on 28-5-1978 be cancelled. On the same date, Government also addressed a letter to the Divisional Commissioners of the Divisions and the Deputy Commissioners of the Districts (Exhibit E) to direct the Returning Officers of the Municipal Councils to cancel the calendar of events issued for holding elections on 28-5-1978 by issue of a separate Notification. In pursuance of the aforesaid Notification and the letter dated 27-3-1979 (Exhibits C and E), respondent No. 2 issued a Notification No. TMC ELN 1/79-80 dated 19-4-1979 cancelling the aforesaid calendar of events and the same reads thus:—

“No. TMC ELN 1/79-80 Office of the Tahsildar and Returning Officer, Town Municipal Council Election, Kanakapura, dated 19-4-1979. Sub:— Holding of Municipal Election to Town Municipal Council, Kanakapura— Ref:— 1) No. HUD 59 LRB 78 dated 27-3-79 of the Government of Karnataka— 2) D.O No. MUN (1) CR 4/79-80 dated 16-4-79 of the Development Assistant to the Deputy Commissioner, Bangalore— Notification

4. The elections to the Town Municipal Council, Kanakapura proposed to be held on 28-5-78 is hereby cancelled as per the above Government Notification No. HUD 59 LRB 78 dated 27-3-79 and as per the D.O letter of the Deputy Commissioner, Bangalore, No. MUN (1) CR 4/79-80 dated 16-4-79.

Tahsildar and Returning Officer, T.M.C Elections Kanakapura.

Copy to:—

1) The Chief Officer, Town Municipal Council, Kanakapura, to give wide publicity by beat of tom and to display the same in his office notice board.

(2) Shri K. Gundu Ramaiah, Press Correspondent, for information with a copy of Press Note.

(3) Office Notice Board.

Tahsildar and Returning Officer, T.M.C Elections, Kanakapura.”

5. As in the case of other Municipalities in the State, respondent No. 2 issued a fresh calendar of events on 23-4-1979 specifying the following dates for holding elections to the T.M.C:—

“23-4-79 to 30-4-79 Receipt of nominations. 2-5-79 Scrutiny of nominations. 5-5-79 Last date for withdrawal of nominations. 27-5-79 Date of poll. 28-5-79 Scrutiny and counting of votes. 31-5-79 Last date for completion of elections.”

6. In response to the fresh calendar of events, none of the petitioners in particular petitioner No. 1 have filed their nominations, but respondents Nos. 3 to 41 filed their nominations which were accepted as valid at the time of scrutiny. As the number of candidates that were left in the field was in excess of the seats for various Divisions, poll to the T.M.C was scheduled to be held on 27-5-79. On 22-5-1979, the petitioners have moved this Court challenging the constitutionality of S. 38(1) of the Act and the validity of the Notification dated 27-3-1979 (Exhibit C) and have sought for a mandamus to hold elections to the T.M.C on the basis of the calendar of events issued on 26-4-1978 (Exhibit A). In the petition originally filed, the petitioners had impleaded only the State of Karnataka and the Returning Officer and had not impleaded any of the candidates that had filed their nominations and whose nominations had been accepted as valid. On 23-5-1979, an application to implead the candidates that had filed their nominations viz., I.A No. 1 was filed by the petitioners which was allowed by this Court on the same day. While issuing rule nisi, I rejected the prayer of the petitioners to stay the poll scheduled to be held on 27-5-1979 but directed the withholding of the publication of the returned candidates for a period of four weeks from that day which as not been extended before the expiry of the time stipulated therein. In that view under S. 20 of the Act, the Deputy Commissioner, Bangalore, has published the names of the elected candidates on 26-6-1979.

7. The petitioners contend that S. 38(1) of the Act is beyond the legislative competence of the State and in any event confers arbitrary, naked and unguided power on the Government and is therefore liable to be struck down as violative of Article 14 of the Constitution. A fortiori the petitioners contend that the Notification dated 27-3-1979 and all further action taken thereto are all invalid and that poll has to be completed on the basis of the calendar of events issued on 26-4-1978 (Exhibit A). In I.A No. 3, the petitioners have alleged that the voters' list maintained for the several Divisions of the T.M.C does not conform with the territorial divisions made by the Government under S. 13 of the Act.

8. In justification of their action, respondents Nos. 1 and 2 have produced the relevant records and have argued their case. In his return, respondent No. 36, has denied the allegations made and contentions urged by the petitioners. He has alleged that the voters' list maintained by the authority is in conformity with the territorial divisions made by the Government.

9. Shri G.B Raikar, learned counsel for the petitioners, at the forefront contended that S. 38(1) of the Act was beyond the legislative competence of the State Legislature and was a colourable piece of legislation and is therefore liable to be struck down. Shri Raikar maintained that Entry No. 5 of List II State List of the VII Sch. of the Constitution does not empower the State Legislature to control the elections to the Municipalities that are constituted under the Act and (S. 38(1)) is a case of colourable legislation, the meaning, scope and ambit of which has been examined and settled by the Supreme Court in K.C Gajapati Narayan Deo v. State of Orissa (AIR 1953 SC 375).

10. Before examining the aforesaid contention of Shri Raikar and other contentions urged by him, I first propose to examine whether this is a fit case in which this Court should assist the petitioners in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution.

11. In pursuance of the Notification dated 27-3-1979 and the letter addressed by the Government thereto (Exhibits C and E), respondent No. 2 issued a Notification on 19-4-1979 cancelling the calendar of events. In the same Notification respondent No. 2 has directed that the said Notification should be given wide publicity by beat of tom, tom and its display on the Notice Board. The papers produced established that the cancellation of Notification has been given wide publicity as directed by respondent No. 2. As in the case of other Municipalities in the State, respondent No. 2 has published the calendar of events on 23-4-1979. For reasons best known to themselves, none of the petitioners and in particular petitioner No. 1 who had filed his nomination earlier, have filed their nominations in response to the aforesaid calendar of events. Every one of the petitioners, in particular petitioner No. 1 must have been aware of the Notifications issued by respondent No. 2 on 19-4-1979 cancelling the calendar of events and the calendar of events dated 23-4-1979 for holding fresh elections. But the petitioners have approached this Court on 22-5-1979 allowing the State to make all arrangements for holding elections at considerable cost and time and the candidates to file their nominations spending their money and time before the very last phase of elections viz., poll, counting and declaration to be completed. So far as the earlier calendar of events are concerned, all the persons whose nominations had been accepted except petitioner No. 1 and a large number of voters of the town except petitioners Nos. 2 to 4, have reconciled with the action taken by the authorities. So far as petitioners Nos. 2 to 4 are concerned, they are not concerned as to which calendar of events holds the field. All these circumstances would clearly show that in approaching this Court, there is considerable delay and acquiescence on the part of the petitioners and the invalidation of the actions taken by the authorities, assuming there is any merit in any or all of the contentions, would cause great injury and harm to the State, the general public and others, without really conferring any benefit to the petitioners. Lastly any interference by this Court at this distance of time, would postpone the democratic body to function in the area. For the above reasons, I am of the opinion that this is a fit case in which I should decline to exercise the extraordinary jurisdiction conferred on this Court under Art. 226 of the Constitution.

12. In their petition or in the several I.A.s filed by them, the petitioners have not given any satisfactory explanation for the undue delay in approaching this Court. At the hearing of the case, Shri Raikar maintained that there is really no delay in approaching this Court and in any event having regard to the fact that rule nisi has been issued and several important questions arise for determination, this court should not throw out the writ petition only on the ground of delay. In support of his contention, Shri Raikar strongly relied on the rulings of the Supreme Court in Khub Chand v. State of Rajasthan (AIR 1967 SC 1074) and Union Of India v. Khas Karanpura Colliery Co. Ltd., Ltd., (AIR 1969 SC 125).

13. In examining whether there is any delay or not, no hard and fast rule can be laid down by a Court. What may be a delay in one case, may not be a delay in another case. Each case has to be examined on the facts and circumstances of that case. In Khub Chand's case and Khas Karanpura Colliery Co., Ltd.'s case, the Supreme Court had to consider the delay in examining the validity of acquisition proceedings of immoveable property. But here, we are concerned with the validity of elections to be held to a Municipality. In election matters, even a day's delay would be fatal. I am therefore of the opinion that the ratio in Khub Chand's case and Khas Karanpura Colliery Co. Ltd.'s case does not really assist Shri Raikar. In this view, the question of examining the validity of the contentions would not really arise. But I do not propose to do so for the reasons that my order is subject to appeal and the questions that arise for determination arise now and then before this Court.

14. Section 38(1) substituted by the Karnataka Municipalities Amendment Act of 1976 (Karnataka Act 83/76) the constitutionality of which is seriously attacked by Shri Raikar reads thus:—

“38(1): Every election of councillors shall be subject to the control and supervision of the Government and it shall be lawful for the Government to issue directions regarding all matters connected with the elections including directions for cancellation of the calendar of events and postponement of the poll.”

15. Every election to the City and Town Municipal Councils constituted under the Act in the State, is subject to the control and supervision of the Government for which purpose it is open to the Government to issue directions to its subordinate officers on all matters connected with the elections including cancellation of calendar of events and postponing of polls. The power is exclusively conferred on the Government and not on any other authority. Before this Court, the validity of this section was challenged in B.B Bannada v. State of Karnataka (Writ Petn. No. 6427 of 1978 D/- 26-3-1979: (Reported in ILR 1979 KAR 1772)) on the ground that it conferred uncontrolled and unguided power to interfere with the elections. On 26-3-1979 a Division Bench of this Court of which I was a member, rejected the said contention and upheld its constitutionality. Shri Raikar maintained that the Division Bench in B.B Bannada's case has not examined the constitutionality of the provision from the point of legislative competence and therefore that decision is not an authority on the point. In Bannada's case, the petitioners did not challenge the provisions on the ground of legislative competence. But the Division Bench has upheld the constitutionality of the provision rejecting the contention that was urged before it. When the constitutionality of a provision has been upheld by a Division Bench, that being the question that arose before it, it would be still a binding decision and it is not open to a single Judge to hold it as unconstitutional vide Smt. Somawanti v. State of Punjab (AIR 1963 SC 151 at p. 160). But, I will also assume that is not the legal position and examine whether S. 38(1) suffers for want of legislative competence as contended by Shri Raikar.

16. According to Shri Raikar, Entry 5 of List II State List of the VII Sch. does not enable the State Legislature to legislate in respect of elections to local bodies or local Governments by whatever name they are called. He sought to read Entry 5 as enabling the State Legislature to legislate in respect of constitution and powers of Municipal Corporations and other bodies described therein and that entry not enabling the State Legislature to enact in respect of elections and in any event as permitting cancellation of elections which has the effect of destruction of the bodies.

17. Entry 5 of List II State List of the VII Sch. reads thus:—

‘5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.

18. The settled principle in interpreting an entry found in the VII Schedule of the Constitution corresponding to the VII Schedule of the Government of India Act of 1935, is that a large and liberal construction must be put on legislative power and that such power carries with it all ancillary and subsidiary powers. An entry in the VII Sch. cannot be interpreted as if it is a clause occurring in a municipal document or a local enactment. In the light of the above principle, it is open to the State Legislature to legislate in respect of every matter connected with a ‘Local Government’ which includes a Municipality on every matter connected thereto like its constitution, elections, control and supervision of elections, cancellation of calendar of events and postponement of poll and S. 38(1) is therefore within the legislative competence of the State Legislature. The original Act also provided for the constitution of the Municipalities by holding elections and various other matters connected with the elections to the Municipalities. S. 38(1) occurs in the Chapter ‘Constitution of Municipalities’. Once it is held that S. 38(1) of the Act is within the legislative competence of the State, it necessarily follows as pointed out by the Supreme Court in K.C Gajapathi Narayan Deo's case (AIR 1953 SC 375), the purpose and object of legislation has no relevance and the same cannot be struck down by applying the doctrine of ‘colourable legislation’.

19. Shri Raikar urged that the words ‘that is to say’ following the words ‘local Government’ and preceding the words ‘the constitution and powers of municipal corporations and other bodies’ should be interpreted as enabling the State Legislature only within the constitution and powers of the municipal corporation and not on any other matter.

20. Firstly, the interpretation suggested by Shri Raikar is too literal and cannot be accepted more so in ascertaining the meaning of an entry in the VII Sch. of the Constitution. Secondly, the words ‘that is to say’ are merely explanatory or illustrative and not words either of amplification or limitation (vide Bhola Prasad v. Emperor (1942) FCR 17 : (AIR 1942 FC 17); Megh Raj v. Allah Rakhia (1947) FCR 77 : (AIR 1947 PC 72)). I therefore reject the contention of Shri Raikar that S. 38(1) of the Act is beyond the legislative competence of the State Legislature.

21. Shri Raikar next contended that S. 38(1) confers naked, arbitrary, unguided and uncontrolled power on the State Government and is violative of Art. 14 of the Constitution and is therefore liable to be struck down. He maintained that the decision of this Court in B.B Bannada's case is opposed to the well settled legal principles as enunciated by the Supreme Court in every case and in particular in Devi Das Gopal Krishan v. State of Punjab, (AIR 1967 SC 1895).

22. Section 38(1) of the Act was challenged on the very ground on which it is attacked before me viz., that it confers naked, arbitrary, unguided and uncontrolled power on the Government. But the Division Bench as late as on 26-3-79 rejected the said contention. In rejecting that contention, the Division Bench followed an earlier ruling of this Court in Doddahanumanthaiah v. State of Karnataka (Writ Petn. Nos. 7201 to 7207 of 1978 decided on 7th July, 1978: (Reported in ILR 1979 KAR 1685)) in which a Division Bench consisting of Venkataramiah and Srinivasa Iyengar, JJ. upheld a simliar provision found in the Karnataka Village Panchayats and Local Boards Act of 1959. In Doddahanumanthaiah's case, the dictum laid down by the Division Bench was as follows:—

“Since the power is exercisable in relation to an election, it has to be assumed that the Section itself contains necessary guidelines in view of the object with which the said provision is enacted. We are of the view that the power under sub-sec. (3) of S. 7 has to be exercised by the State Government having regard to the policy and object of that provision. When the policy and object of law are clear, it cannot be said that the law suffers from want of guidance (vide P.J Irani v. State Of Madras & Another, AIR 1961 SC 2731). Moreover, power is conferred on an authority as high as the State Government in this case and it has to be assumed that it would exercise the power in a reasonable way”

23. In reaching the above conclusion, the two Division Benches of this Court have not overlooked any of the legal principles though it may be they have not referred to all the rulings of the Supreme Court and in particular to Devi Das Gopal Krishna's case (AIR 1967 SC 1895). At any rate, the two Division Benches have specifically examined the very point and have decided the point that arose before them. In such a situation, the following principle enunciated by the Supreme Court in Somawanti's case (AIR 1963 SC 151) would be apposite:—

“The binding effect of a decision does not depend upon whether a particular argument was considered therein or not provided that the point with reference to which an argument was subsequently advanced was actually decided.”

24. On the application of the above principle, it would be presumptuous and wrong on my part to examine the question as if the matter has not been decided by this Court. In this view, the question of examining that S. 38(1) confers naked, arbitrary, unguided and uncontrolled power does not arise.

25. Shri Padmanabha Mahale who first argued the case contended that in pursuance of the Notification dated 27-3-1979 and the letter of the Government of the same date (Exhibits C and E), respondent No. 2 had not issued a Notification cancelling the calendar of events and therefore he was bound to proceed with the calendar of events issued earlier. In answer to this contention, respondent No. 2 has produced a copy of the Notification dated 19-4-1979 cancelling the calendar of events, the validity of which is not challenged by the petitioners. In this view, the contention urged by Shri Padmanabha Mahale is without any basis and is liable to be rejected.

26. Shri Raikar at one stage contended that S. 38(1) of the Act does not empower the Government to postpone the poll or cancel the calendar of events but only empowers it to issue directions in that behalf and in the impugned Notification the Government has cancelled the calendar of events in derogation of S. 38(1) of the Act. But on re-examining the language of the Notification dated 27-3-1979, Shri Raikar, in my opinion, did not rightly pursue this argument. Even otherwise I do not see any infirmity in the Notification dated 27-3-1979 issued by the Government.

27. Shri Raikar lastly contended that the voters' list maintained for the various Divisions is not in accord with the territorial divisions determined by the Government. At the hearing of the case, respondent No. 2 has produced the voters' list maintained for the various divisions which appears to follow the determination of the constituencies made by the Government. In any event, there is no material to take the view that the list of voters maintained by the authorities for the various divisions is not in accord with the determination of the constituencies made by the Government. I have therefore no hesitation in rejecting this contention of Shri Raikar. As all the contentions urged for the petitioners fail, the rule issued in this case is liable to be discharged. Rule issued is therefore discharged.

28. In the circumstances of the case, I direct the parties to bear their own costs.

29. Petition dismissed.