The main legal point established in the judgment is the need to ensure compliance with the provisions of the Constitution of India and the Representation of the People Act regarding the elections to the Legislative Council seats earmarked for local bodies.

(Per: HONOURABLE THE CHIEF JUSTICE)

This writ petition, filed in public interest, presents important constitutional and legal issues. Added to that, it pertains to the elections to the Legislative Council. Therefore, the caution and care with which the matter is required to be undertaken is much more. Since what is presented before us is a purely legal issue, we have decided to make an attempt to come out with a solution to the extent possible, in the given circumstances.

2. The Constitution of India provides for bicameral Legislatures in the States. However, it is in the discretion of the concerned States whether or not to have the Legislative Council. Chapter-3 of Part-IV of the Constitution makes this aspect clear. In the State of Bihar, there existed a Legislative Council even before the Constitution came into force.

3. Article-171 of the Constitution is to the effect that the total seats in the Council shall be divided into various categories, namely 1/3rd of the members to be elected by the heads of Municipalities, District Boards or other local authorities, another 1/3rd to be elected by the Legislative Assembly and remaining 1/3rd to be elected by the graduates and teachers etc. In this case, we are concerned with the members to be elected by the heads of the local bodies.

4. The term of the members of Legislative Council is almost on par with that of Rajya Sabha, i.e. six years. An important attribute of the Legislative Councils, or, for that matter, Rajya Sabha, is the continuity of the House. Article-172 mandates that there shall not be dissolution of the Council. In the Representation of the People Act (for short “the Act”), the Parliament made adequate provision for this purpose. Section-156 is to the effect that the Governor shall issue orders to ensure that at the initial stage, the term of 1/3rd of members of each category is two years, next 1/3rd members of such categories is four years and that of the remaining 1/3rd, members six years. The sole objective is to ensure that 1/3rd of the members of every category retire, at the end of two years and fresh members are elected in their place.

5. The exercise referable to Section-156 of the Act was undertaken by the Governor of Bihar through a notification dated 17.6.1953, Annexure-1. To determine the members whose term shall be two years, four years or six years, as the case may be, lots were drawn by issuing a notification dated 20th June, 1953 (Annexure-2). After that exercise, a notification, Annexure-3, was published by the Legislative Council on July 7, 1953. In the category of local authority constituencies, the term of the following members was determined to be two years:-

1. Shri Kumar Jha

2. Shri Vishnu Shankar

3. Shri Baidyanath Mishra

4. Shri Ram Bahadur Roy

5. Shri Beer Narain Chand

6. Shri Sagar Mohan Pathak

7. Shri Kanta Kumar Lal

8. Shri Shambhunath Roy

The term of the following as four years:-

1. Shri Brij Raj Bahadur

2. Shri Mahenth Mahadevanand Giri

3. Shri Sheenath Pd.

4. Shri Mathura Pd. Singh

5. Shri Brajendra Bahadur

6. Shri Kumar Kalyan Lal

7. Shri Mayanand Thakur

8. Shri Ram Prakash Lal

and for the remaining eight candidates, the term was fixed as six years. It is important to note that the constituency, from which each candidate is elected, is chronicled from time to time.

6. It is axiomatic that the elections are held on completion of term of two years or the four years, as the case may be, and the same pattern continued. A sort of deadlock came into existence in the year 1976 in view of the fact that the elections to the local bodies were not conducted at all. Therefore, the biennial elections were not held to elect the members of the Council, from that category. The same hiatus continued till the year 2003, by which time, the elections to the local bodies were held.

7. All the 24 seats of the Council, in the category of local bodies remained vacant by that time. Contrary to the mandate under the Constitution as well as the Repre