1994 Supreme(Guj) 275

Gujarat High Court
Judgename :B.N.KIRPAL, R.K.Abichandani
RASIKCHANDRA DEVSHANKER ACHARYA - Appellant
Versus
STATE - Respondent
S.C.A. 9740 of 1994
Decided On : 09/29/1994

Headnote:(a) Constitution of India, 1950 - Part IX and IX-A (Added by Constitution Seventy Third and Seventy Fourth Amendment Act) - Arts. 14, 243-E, 243-U, 243-B, 243-Q, 243-K/243-ZA - Requirement to hold election - Gujarat Local Authorities (Temporary Postponment of Election) Act, 1994 - Permitting postponment of Election of Panchayats and Municipalities - Constitutional validity - Held, Impugned Act is violative of the Scheme of Part IX and X-A in general and Arts. 243-E/243-U, 243-B/243-Q, 243-K/243-ZA in particular.

       The word `Municipality in Article 243-U can, under no circumstances, be given the restricted meaning. The only meaning which can be given to the word `Municipality is that it means a Municipality which is established under any Law for the time being in force. The provisions of the impugned Act are clearly in conflict with Article 243-U of the Constitution. Even with regard to Municipalities whose duration has not expired the impugned Act has prohibited the holding of elections. For example, the duration of the Municipality at Anand is due to expire on 22nd of October, 1994. By virtue of Sub-Article (3) of Article 243-U, an election to constitute a Municipality has to be completed before 22nd of October, 1994. The impugned Act, however, has prohibited the holding of the election during the term of the Municipality. The impugned Act is, therefore, clearly in conflict with the express provisions of Article 243-U. The various Articles of Part IX and Part IX-A and Article 243-E, and Article 243-U in particular, do apply proprio vigore and the impugned Act is clearly in conflict with the said provision. As a result of the impugned Act elections are not to be held within the time prescribed by Article 243-E and Article 243-U and non-elected bodies headed by Administrators appointed by the State Government, instead of elected representatives of the people, will continue to run these Local Authorities. An Act, which leads to such a result, is clearly ultra vires Part IX and Part IX-A of the Constitution. On examining the provisions of the impugned Act, it appears that there is a clear attempt to have a stealthy encroachment on the provisions of Part IX and Part IX-A of the Constitution. It is held that the provisions of Section 3 of the Gujarat Local Authorities (Temporary Postponement of Elections) Act, 1994 are ultra vires Part IX and Part IX-A of the Constitution and more particularly of Articles 243-B/243-Q, 243- E/243-U and 243-K/243-ZA thereof and are, therefore, null and void.

       [Paras 39, 40, 43, 26 & 57]

       (b) Elecion - Local self bodies - Gujarat Act, 1994 - Postponing election - Held, Impugned Act is clearly an attempt to make constitutional provisions of Parts IX & X-A still born.

       The impugned Act, however, is clearly an attempt to make these Constitutional provisions `still-born by postponing the elections and depriving democracy from taking root at the ground level.

       [Para 45]

       (c) Constitution of India, 1950 - Art. 21 - Rights to be governed by democratic institution - No conclusive opinion expressed, however possibility of violation of Art. 21 raised if the there is a threat to democratic institution.

       An argument raised was that even though right to vote may not be a fundamental right, nevertheless the right to be governed by a democratic institution is the essence of Article 21. The citizens have a right to political participation and democracy, being one of the basic features of the Constitution, any threat to a democratic authority, as established by the Constitution, may involve the violation of Article 21 of the Constitution.

       [Para 47]

       (d) Election - Election process - Revision of electoral rolls - Is a continuous exercise - In the absence of Rules, revision of electoral rolls cannot be postponed - Directions issued.

       Merely because the State Government has delayed the preparation of the Rules should be no ground for the State Election Commission to postpone the revision of the Rolls. We have already held that the impugned Act is ultra vires with the result there is no legal impediment in the way of the State Election Commission from undertaking the exercise of revision of Rolls.

       [Para 54]

       (e) Constitution of India, 1950 - Art. 226 - Mandamus - Issued to State Government and State Election Commission for preparation of electoral rolls.

       A writ of mandamus is also issued to the State Election Commission to prepare electoral rolls and conduct elections to the Municipal Corporations, Municipalities, and the Panchayats wherever due as per his Constitutional duties under Article 243-K and Article 243-ZA expeditiously and at the very earliest in accordance with law and in the light of this judgment and by ignoring the provisions of Section 3 of the Gujarat Local Authorities (Temporary Postponement of Elections) Act, 1994, which has been declared ultra vires and null and void.

       [Para 58]