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2006(9) Supreme 21
SUPREME COURT OF INDIA
(From Gujarat High Court)
Y.K. Sabharwal, CJI., K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan, JJ.
Kishansing Tomar - Appellant
versus
Municipal Corporation of the City of Ahmedabad & Ors. - Respondents
Civil Appeal No. 5756 of 2005
Decided on 19-10-2006
Counsel for the Parties :
For the Appellant : Nidhesh Gupta, S.U.K. Sagar, Ms. Bina Madhavan, Rahul Pratap (for M/s. Lawyer’s Knit & Co.), Advocates.
For the Respondent No. 3 : S. Muralidhar and Rutwik Panda, Advocates.
For the Respondent No. 2 : Soli J. Sorabjee, Sr. Advocate, Preetesh Kapur, Ms. Hemantika Wahi, Abhishek Mishra and Ms. Shivangi, Advocates.
For the Respondent No. 1 : Ms. Sumita Hazarika, Advocate.
For the Impleading Party : M/s. J.S. Wad & Co. (N/P), Advocates.
Held : Under this Article, the duration of the Municipality is fixed for a term of five years and it is stated that every Municipality shall continue for five years from the date appointed for its first meeting and no longer. Clause (3) of Article 243-U states that election to constitute a Municipality shall be completed– (a) before the expiry of its duration specified in clause (1), or (b) before the expiration of a period of six months from the date or its dissolution. Therefore, the constitutional mandate is that election to a Municipality shall be completed before the expiry of the five years period stipulated in Clause (1) of Article 243-U and in case of dissolution, the new body shall be constituted before the expiration of a period of six months and elections have to be conducted in such a manner. A Proviso is added to Sub-clause (3) Article 243-U that in case of dissolution, the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. It is also specified in Clause (4) of Article 243-U that a Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under Clause (1) had it not been so dissolved. (Para 11)
So, in any case, the duration of the Municipality is fixed as five years from the date of its first meeting and no longer. It is incumbent upon the Election Commission and other authorities to carry out the mandate of the Constitution and to see that a new Municipality is constituted in time and elections to the Municipality are conducted before the expiry of its duration of five years as specified in Clause (1) of Article 243-U.(Para 12)
The Election Commission shall try to complete the election before the expiration of the duration of five years period as stipulated in Clause (5). Any revision of electoral rolls shall be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing electoral rolls. In other words, the Election Commission shall complete the election before the expiration of the duration of five years period as stipulated in Clause (5) and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time.(Para 17)
The election has to be held on the basis of the electoral rolls which are in force on the last date for making nomination. It is true that Election Commission shall take steps to prepare the electoral rolls by following due process of law, but that too, should be done timely and in no circumstances, it shall be delayed so as to cause gross violation of the mandatory provisions contained in Article 243-U of the Constitution.(Para 18)
It is true that there may be certain man-made calamities, such as rioting or breakdown of law and order, or natural calamities which could distract the authorities from holding elections to the Municipality, but they are exceptional circumstances and under no circumstance the Election Commission would be justified in delaying the process of election after consulting the State Govt. and other authorities. But that should be an exceptional circumstance and shall not be a regular feature to extend the duration of the Municipality. Going by the provisions contained in Article 243-U, it is clear that the period of five years fixed thereunder to constitute the Municipality is mandatory in nature and has to be followed in all respects. It is only when the Municipality is dissolved for any other reason and the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the Municipality for such period.(Para 19)
(ii) Constitution of India - Articles 243-U, 243-ZA, 243-S, 243-T - Bombay Provincial Municipal Corporation Act, 1949 - Sections 6, 6-A - Bombay Provincial Municipal Corporation (Delimitation of Wards in the City and Allocation of Reserved Seats) Rules, 1994 - Bombay Provincial Municipal Corporation (Registration of Voters) Rules, 1994 - Elections for constituting Municipal Corporation of City of Ahmedabad - Elected body of the Corporation was constituted for the relevant period pursuant to an election held in October, 2000 - Its term was due to expire on 15-10-2005 - Appellant, Chairman of Standing Committee of the Corporation apprehended that authorities may delay the process of election to constitute the new Municipal body - Writ petition filed for appropriate directions - State Election Commission submitted that it would take time to complete process of delimitation of wards - Single Judge accepted the time frame suggested by the State Election Commission and directed that it should be strictly followed - Whether authorities were bound to complete the election process at the earliest and elections should have been held before the expiry of the term of the existing Municipal Corporation - (Yes).
Held : The entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new Municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. In this direction, it is necessary for all the State governments to recognize the significance of the State Election Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for the Parliament and State Legislatures. In fact, in the domain of elections to the Panchayats and the Municipal bodies under the Part IX and Part IX A for the conduct of the elections to these bodies they enjoy the same status as the Election Commission of India. (Para 20)
In terms of Article 243 K and Article 243ZA (1) the same powers are vested in the State Election Commission as the Election Commission of India under Article 324. The words in the former provisions are in pari materia with the latter provision.(Para 21)
From the reading of the said provisions it is clear that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by State Legislatures provided the same do not encroach upon the plenary powers of the said Election Commissions.(Para 23)
The State Election Commissions are to function independent of the concerned State Governments in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and Municipalities.(Para 24)
Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the concerned State Government in discharging its constitutional obligation of holding the elections to the Panchayats or Municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the concerned State Government to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfill the constitutional mandate.(Para 26)
JUDGMENT
K.G. Balakrishnan, J. - This appeal is directed against the judgment of the Division Bench of the High Court of Gujarat. The appellant filed a Special Civil Application No. 9847 of 2005 praying for a writ of mandamus or any other appropriate writ or direction to the respondents in the writ petition, namely, the Municipal Corporation of the City of Ahmedabad, the State of Gujarat and the Gujarat State Election Commission, to take all steps necessary for the purpose of holding elections for constituting the Municipal Corporation of the city of Ahmedabad before the expiry of the duration of the Municipal Corporation constituted pursuant to the elections held in October, 2000. The appellant, who was the writ petitioner before the High Court, was the Chairman of the Standing Committee of the Ahmedabad Municipal Corporation (hereinafter referred to as "AMC"). The elected body of the AMC was constituted for the relevant period pursuant to an election held in October, 2000 and its term was due to expire on October 15, 2005. The appellant apprehended that the authorities may delay the process of election to constitute the new Municipal body and therefore filed the aforesaid writ petition on 23rd August, 2005. The AMC filed an affidavit before the High Court stating that it was the responsibility of the third respondent, namely, the State Election Commission, to conduct the elections in time. The State Election Commission, in a separate affidavit in reply, submitted that under the provisions of the Bombay Provincial Municipal Corporations Act, 1949, the State Govt. had issued a Notification on 8th June, 2005 determining the wards for the city of Ahmedabad by which the total number of wards had been increased from 43 to 45 and in view of the increase in the number of wards, the Commission was required to proceed with the exercise of delimitation of the wards of the city of Ahmedabad in accordance with the provisions of the Bombay Provincial Municipal Corporation (Delimitation of Wards in the City & Allocation of Reserved Seats) Rules, 1994 and that the Commission had issued a circular requiring the Collectors and the Designated Officers to furnish the details and to make proposals for delimitation of the wards. The Commission contended that it would take two months time to complete the process of delimitation as the preparation of voters list in each ward had to be revised in accordance with the Bombay Provincial Municipal Corporation (Registration of Voters) Rules, 1994. It was alleged by the Commission that it was required to consult the political parties to carry out the delimitation of the wards and that it would take at least six months time for completing the process of election and the Commission could act only after the State Govt. issued the notification. The State Govt. produced a chart showing the detailed steps taken by the State Govt. at various stages culminating in the issue of Notification dated 8th June, 2005.
2. The appellant contended before the Single Judge that in view of Article 243-U of the Constitution, the authorities were bound to complete the process at the earliest and the elections should have been held before the expiry of the term of the existing Municipal Corporation. The learned Single Judge accepted the timeframe suggested by the State Election Commission and directed that it should be strictly followed and the process of elections must be completed by 31st December, 2005, and that no further extension for holding the elections would be permissible.
3. Aggrieved by the decision of the Single Judge, the appellant filed a Letters Patent Appeal before the High Court and the Division Bench of the High Court by the impugned judgment held that the timeframe given by the State Election Commission was perfectly justified and the Election Commission was directed to begin and complete process as per the dates given in its affidavit and the L.P.A. was dismissed. Aggrieved thereby, the present appea
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