Madhya Pradesh High Court
Brajesh Singh Tomar vs The State Of Madhya Pradesh on 25 April, 2019
1
W.P. No. 15826/18
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : SHEEL NAGU, J.)
W.P. No. 15826/18
Brajesh Singh Tomar
Vs.
State of M.P. & Ors.
_____________________________________________________
Shri Arvind Dudawat, Advocate for the petitioner.
Ms. Anuradha Singh, Govt. Advocate for the respondents No.
1, 2 and 3/State.
Shri R.D. Jain, senior counsel with Shri Sangam Jain, learned
counsel for the respondent No.4.
Shri Ankur Maheshwari, learned counsel for the respondent
No.5.
___________________________________________
ORDER
( 25.04.2019) CONTENT & CONTEXT
1. Writ and as well as supervisory jurisdiction of this court under Article 226/227 of the Constitution is invoked praying for quashment of order dated 10/7/18 vide P-8 issued by M.P. State Election Commission, Bhopal ("Commission" for brevity) holding 2 W.P. No. 15826/18 in abeyance the process of election to the Municipal Council Narwar District Shivpuri whose last term of five years had expired on 12/2/18 and in regard to which election programme had been announced by the Commission by letter dated 9/7/18.
2. Learned counsel for the rival parties are heard on the question of admission and as well as final disposal.
3. Learned counsel submits that petitioner is a registered voter of Ward No.6 of Municipal Council Narwar and is aggrieved by non-holding of election to the said Municipality despite completion of it's last tenure of five years on 12/2/18.
4. The facts giving rise to the present petition as projected by learned counsel for petitioner are that after holding of last election to the said Municipality, the first meeting of elected Councilors was held on 13/2/13 vide P/2 whereafter it is contended that in view of provision of Article 243-U of the Constitution r/w section 36 (2) (a) of the Madhya Pradesh Municipalities Act, 1961 ("1961 Act" for brevity), the five years term of the said Municipality came to an end on 12/2/18. It is submitted that Commission vide P/3 dated 11/9/17 invoking it's powers u/S. 32 of 1961 Act inter alia directed Collector Shivpuri (the district within which the Municipality in question is situated) to conclude the process of preparation/revision 3 W.P. No. 15826/18 of electoral rolls to ensure holding of election inter alia to the said Municipality before expiry of period of five years i.e. 12/2/18. It is urged that pursuant thereto the State Government invoking Section 29 of 1961 Act published notification in the M.P. Gazette Extraordinary dated 14/5/18 vide P/4 determining the number and extent of wards situated inter alia in the said Municipality. Thereafter in terms of Article 243(T) of the Constitution and Section 29-A of 1961 Act, the process of reservation of wards already determined u/S. 29 of 1961 Act was initiated by the Prescribed Authority i.e. Collector Shivpuri vide P/5. Thereafter it is submitted by referring to Anneuxure P/7 dated 9/7/18 that the Commission announced and published the election programme as per Rule 21 and 22 of the Madhya Pradesh Nagarpalika Nirvachan Niyam,1994 ("Nirvachan Niyam" for brevity).
4.1 In the aforesaid factual background, learned counsel for petitioner submits that like the bolt from the blue impugned order dated 10/7/18 vide P/8 was passed by the Commission holding in abeyance the process of election by acceding to the request of State Govt. which was of the view that in absence of publication of notification in the gazette u/R 7 of M.P. Municipalities (Reservation of Wards for Scheduled Castes, Scheduled Tribes, Other Backward 4 W.P. No. 15826/18 Classes and Women) Rules, 1994 ("Reservation Rules" for brevity) it would be unlawful to proceed with the election. 4.2 Learned counsel for the petitioner has thus submitted that despite the last tenure of Municipality being over on 12/2/18 and the process of election having commenced on 9/7/18 with much delay, the Commission on 10/7/18 without any authority of law has stalled the election process.
5. Per contra, learned senior counsel Shri R.D. Jain on behalf of the Commission by referring to the return filed on 4/8/18 contends that after the Prescribed Authority-Collector Shivpuri intimating the State Government of the details of process of reservation arrived at under Rule 7 of Reservation Rules, the State Government vide letter dated 25/6/18 vide R/5 raised certain objections. It is revealed from the return of the Commission that Collector Shivpuri in response vide letter dated 2/7/18 (Annexure R/2) reiterated the correctness of reservation of wards arrived at by him earlier vide R/4. The Commission further reveals in the return that despite the Reservation Rules conferring no power on the State Government to differ with the reservation arrived at by the Prescribed Authority- Collector (who is the delegate of the State Govt.) persuaded and prevailed upon the Commission to postpone the process of election. 5 W.P. No. 15826/18 The Commission expressing it's helplessness reveals that in the aforesaid compelling circumstances it was constrained to invoke Rule 23 r/w Section 11 (A) of Nirvachan Niyam to issue impugned order dated 10/7/18 vide P/8 holding the process of election in abeyance.
6. Whereas the State and it's functionaries filing return primarily contend that without publication of list of wards as per Rule 7 of Reservation Rules in the M.P. gazette and also due to certain anomalies found in the process of reservation of wards arrived at by Collector Shivpuri u/R 6 of Reservation Rules, it was incumbent upon the State Government to intervene and request the Commission to stall the process of election to prevent a distorted outcome of election owing to incorrect reservation. The return of the State further reveals that it is seized of the matter whether to accept the reservation of wards arrived at by the Prescribed Authority (Collector) or to go in for fresh election.
7. After hearing learned counsel for the rival parties, following questions of law arise for consideration:-
(i) Whether the State Government has any authority in law to interfere with the process of Municipal Election after the announcement and publication of election programme ?6 W.P. No. 15826/18
(ii) Whether the Election Commission can derive any power u/R. 11-A r/w Rule 23 of Nirvachan Niyam, or any other provision to stall/hold in abeyance the process of election which has commenced by announcement of election programme ?
(iii) Whether the State Government u/R 7 of Reservation Rules can refuse/defer publication in gazette the list of reserved wards (prepared by the Prescribed Authority under Rule 6 of Reservation Rules), in other words, the role ascribed to State Govt. u/R. 7 of Reservation Rules is merely that of a post office or the State Govt. can find fault with the list of reserved wards determined by the Prescribed Authority (Collector) u/R. 6 of Reservation Rules or not ?
(iv) Whether the State Government is vested with any power to direct/persuade the Commission to stall/hold in abeyance a municipal election process which has commenced by announcing of election programme ?
8. Before answering the aforesaid questions, it would be apt to reproduce relevant provisions:
Article 243(S) of the Constitution 243S. Constitution and composition of wards Committees, etc (1) There shall be constituted Wards Committees, consisting of one or more Wards, within the territorial area of a Municipality having a 7 W.P. No. 15826/18 population of three lakhs or more.
(2) The Legislature of a State may, by law, make provision with respect to-
(a) the composition and the territorial area of a Wards Committee;
(b) the manner in which the seats in a Wards Committee shall be filled.
(3) A member of a Municipality representing a ward within the territorial area of the Wards Committee shall be a member of that Committee.
(4) Where a Wards Committee consists of-
(a) one ward, the member representing that ward in the Municipality;
or
(b) two or more wards, one of the members representing such wards in the Municipality elected by the members of the Wards Committee, shall be the Chairperson of that Committee.
(5) Nothing in this article shall be deemed to prevent the Legislature of a State from making any provision for the Constitution of Committees in addition to the Wards Committees.
Article 243(T) of the Constitution-
243T. Reservation of seats (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. (2) Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (3) Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. (4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. 8 W.P. No. 15826/18 (5) The reservation of seats under clauses ( 1 ) and ( 2 ) and the reservation of offices of Chairpersons (other than the reservation for women) under clause ( 4 ) shall cease to have effect on the expiration of the period specified in article 334. (6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens.
Article 243(U) of the Constitution-
243U. Duration of Municipalities, etc (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer: Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause ( 1 ).
(3) An election to Constitute a Municipality shall be completed,
(a) before the expiry of its duration specified in clause ( 1 );
(b) before the expiration of a period of six months from the date of its dissolution: Provided that where 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. (4) 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 leave continued under, clause ( 1 ) had it not been so dissolved. Article 243(ZA) of the Constitution-
243-ZA. Elections to the Municipalities.--
(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in State Election Commission referred to in Article 243-K. (2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect 9 W.P. No. 15826/18 to all matters relating to, or in connection with, elections to the Municipalities.
Section 29, 29(A) and 32 of 1961 Act Section-29. Determination of number and extent of wards and conduct of elections (1) The State Government shall from time to time, by notification in the official gazette, determine the number and extent of wards to be constituted for each Municipality:
Provided that the total number of wards shall not be more than forty and not less than fifteen.
(2) Only one Councillor shall be elected from each ward.
(3) The formation of the wards shall be made in such a way that the population of each of the wards shall, so far as practicable be the same throughout the Municipal Area and the area included in the ward is compact.
(4) As soon as the formation of wards of a municipality is completed the same shall be reported by the State Government to the State Election Commission.:
[Provided that the process of inclusion or exclusion of area or reformation of wards inevitably be completed before six months of completion of tenure of any Municipal Council otherwise the State Election Commission shall start electoral process on the basis of preset and prevailing delimitation:
Provided further that inclusion or exclusion of such area or reformation of wards shall apply for upcoming election process] (5) XXXX (6) XXXX Section-29-A. Reservation of Wards- (1) Out of the total number of wards determined under sub-section (1) of Section 29, such number of seats shall be reserved for Scheduled Castes and Scheduled Tribes in every Municipality as bears as may be, the same proportion to the total number of seats to be filled by direct election in the Municipality as the population of the Scheduled Castes or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such wards shall be those in which the population of the Scheduled Castes or the Scheduled Tribes, as the case may be, is most concentrated.
(2) As nearly as possible twenty five percent of the total number of wards shall be reserved for other backward classes in such 10 W.P. No. 15826/18 Municipalities where fifty percent or less seats are reserved for Scheduled Castes and Scheduled Tribes, and such seats shall be allotted by rotation to different wards in such manner as may be prescribed:
Provided that if from any ward so reserved, no nomination paper is field for election, as a Councillor by any member of the other backward Classes then the Collector shall be competent to declare it as unreserved.
(3) Not less than one-third of the total number of seats reserved under sub-section (1) and (2) shall be reserved for women belonging to the Scheduled Castes or the Scheduled Tribes or other backward classes, as the case may be, (4) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes, Scheduled Tribes and other backward classes) of the total number of seats to be filled by direct election in every municipality shall be reserved for women and such seats shall be allotted by rotation to different wards in a Municipality in such manner as may be prescribed.
(5) The reservation of seats under sub-section (1), (2) and (3) shall cease to have effect on the expiration of the period specified in the Article 334 of the Constitution of India.
Explanation: In this section 'other backward classes' means category of persons belonging to backward classes as notified by the State Government.
Rule 11(A), 21 and 23 of Nirvachan Niyam Rule-11A. Commission's power to issue General or Special orders or directions. - Notwithstanding anything contained in these rules, the Commission may issue such special or general orders or directions which may not be inconsistent with the provisions of the Act for fair and free elections.] Rule-21. Notice of election and time schedule therefor. - In accordance with the time schedule prescribed by the Election Commission, the District Election Officer shall by notice in Form 2 specify ;-
(a) the last date, time and place for making nominations for election to the seat of [Mayor, President or Councillor] which shall be the seventh day after the date of publication of the notice or if that day is a public holiday, the next succeeding day which is not a public holiday;
11W.P. No. 15826/18
(b) the dale, time and place for the scrutiny of nominations, and such date shall be the date next following the last date appointed for making nominations, or if that day is a public holiday, the next succeeding day which is not a public holiday;
(c) the last date for withdrawal of candidature which shall be the second day after the date for the scrutiny of nominations, or if that day is a public holiday, the next succeeding day which is not a public holiday;
(d) the date on which and the time during which the poll shall, if necessary, be taken; and
(e) the date, time and place for the counting of votes ;- Note.-"Public Holiday" means any day which is declared to he a holiday by the State Government for its offices as well as the Government Treasuries and Sub-Treasuries in the State.
Rule-23 Extension of time for completion of election. - It shall be competent for the Election Commission for reasons which it considers sufficient to extend the time for completion of any election by making necessary amendments in the time schedule prescribed by it under Rule 21.
Rule 6 and 7 of Reservation Rules Rule-6. Reservation process to be recorded in writing-The prescribed authority shall record in writing the process adopted for reservation and a register for every municipality shall be kept permanently in which it shall be mentioned that when and which wards have been reserved for which category, so that at the time of drawing lot for the subsequent elections, rotation system may be adopted in making reservations.
Rule-7. The prescribed authority to acquaint the State Government regarding reservation- Immediately after making the reservation of wards the Prescribed Authority shall send the information to this effect to the State Government and the State Government shall publish the ist of reserved wards in the Madhya Pradesh Gazette, and the list of reserved wards shall also he pasted on the Notice Board of the office of the Collector and the Municipality.
.....................................
CONSIDERATION
9. Regarding question No.(ii) (supra) - Rule 23 of Nirvachan 12 W.P. No. 15826/18 Niyam as reproduced supra confers upon the Commission, discretion to extend time for completion of any election by appropriately amending time schedule (Election Programme) prescribed in terms of Rule 21 of Nirvachan Niyam. Thus the power conferred upon the Commission can be exercised after issuance of election programme under Rule 21 and 22. However this power is exercisable with a view to extend time prescribed for completion of various stages constituting the election process starting from filing of nomination to declaration of results by way of amendments. Thus it is obvious that nature of power available to the Commission u/R. 23 is of extension of time already prescribed for various events scheduled in the election programme, but not to stall/hold in abeyance, which power is not traceable under Rule 23 of Nirvachan Niyam. More so the statute vests power of extension exhaustively thereby excluding all other nature of power (stalling the election process once commenced).
9.1 Since Rule 11-A of Nirvachan Niyam has also been invoked by the Commission to pass the impugned order, it is essential to discuss the parameters of this Rule. Rule 11-A of Nirvachan Niyam added by way of amendment w.e.f. 7/7/97 empowers the Commission to issue special or general directions provided the 13 W.P. No. 15826/18 same are not inconsistent with the provision of M.P. Municipalities Act, 1961 for achieving object of fair and free election. The terminology used in Rule 11-A reveals the same to be of generic nature but to avoid misuse of this general and wide power, the authority of the Commission is circumscribed by prohibiting exercise of the same for any cause inconsistent with the provisions of 1961 Act and to ensure the ultimate goal of holding free and fair election. Thus the power u/S. 11-A cannot be exercised if the same leads to violation of any provision of 1961 Act. 9.2 Testing the factual matrix of the instant case on the anvil of aforesaid provisions of Rule 23 & 11-A of Nirvachan Niyam, it is seen that Commission in the instant case while passing the impugned order Annexure P/8 (dated 10/7/18) has stalled the election process commenced on 9/7/18 (by publication of the election programme under Rule 21 and 22 of Nirvachan Niyam). While doing so the Commission acceded to the directives of the State of stalling the election process on the pretext that no publication in the gazette had taken place as per Rule 7 of Reservation Rules of reservation of seats in terms of Sec. 29-A of 1961 Act and u/R. 6 of Reservation Rules and thus in the absence of proper reservation of wards, election result would be polluted. 14 W.P. No. 15826/18
10. Leaving aside the cause shown in the impugned order for stalling the election process, it is quite clear that the provision of Rule 23, which relates exclusively to extension and not to stalling of election process, could not have been invoked by the Commission. The power of stalling of election process which has commenced by publication of election programme is not vested with the Commission and therefore, this court has no hesitation to hold that Commission had no power on 10/7/18 (vide P/8) under Rule 11-A or Rule 23 of Nirvachan Niyam to stall the election process which had commenced on 9/7/18 by publication/announcement of election programme under Rule 21 and 22 of Nirvachan Niyam.
10.1 The Commission in terms of Article 243 (ZA) of the Constitution is vested with the power of superintendence, direction and control in regard to preparation of electoral rolls and conduct of all elections to municipalities and in that regard clause 2 of Article 243 (ZA) confers power upon legislature of the State to make laws to govern the issue of elections to the Municipalities. In furtherance of this constitutional power, M.P. Municipalities Act and rules framed thereunder were suitably framed/amended. This legislative power is subject to the other provisions of the Constitution. The 15 W.P. No. 15826/18 Constitution does not separately confer any power upon the Commission to stall the process of election which has commenced. Thus the power of stalling the election once commenced can not be traced either in the Constitution or in 1961 Act or the Nirvachan Niaym and thus the impugned order passed by the Commission invoking Rule 11-A r/w rule 23 of Nirvachan Niyam is dehorsed the Constitution, 1961 Act and Nirvachan Niyam and therefore cannot be sustained on the anvil of judicial review.
Regarding Question No. (i), (iii) and (iv)
11. Coming to the reasons assigned by the State Govt. to justify stalling of election process which have been assigned by the Commission for stalling the election process once commenced, deserves consideration at the hands of this court to do complete justice.
11.1 The first reason assigned is the non publication of notification regarding reservation of wards as per Section 29-A of 1961 Act r/w Rule 7 of Reservation Rules.
11.2 Indisputably the five years period since holding of first meeting on 13/2/13 after last election of municipality in question was to be over on 13/2/18, the State and the Commission were thus duty bound as per Article 243 (U) r/w Article 243 (ZA) and section 16 W.P. No. 15826/18 36 of 1961 Act to hold and complete the election to elect a new body to the Municipality in question before the aforesaid date i.e. 13/2/18. The first step to achieve this objective was to be taken by the State by determining the number and extent of wards u/S. 29 of 1961 Act r/w Reservation Rules. This step which ought to have been taken much prior to expiry of five years tenure was taken with much delay vide P/4 (dated 14/5/18) by publication of notification in official gazette u/S. 29 of 1961 Act. Thereafter the Prescribed Authority (Collector, Shivpuri) u/S. 29-A of 1961 Act r/w Reservation Rules issued notice on 26/5/18 vide P/5 inviting objections from all concerned as regards reservation of wards for SC/ST/OBC/Woman. It appears that no objection was received and thus intimation regarding reservation of wards for different categories as arrived at by the Prescribed Authority (Collector Shivpuri) under Rule 6 of Reservation Rules was forwarded to the State in terms of Rule 7 of Reservation Rules. Thereafter vide P/6 final voter list was published on 2/7/18. Further the Commission vide P/7 dated 9/7/18 declared election programme and published the same as per Rule 21 and 22 of Nirvachan Niyam. On the very next day i.e. 10/7/18 vide P/8, the Commission acceding to the request of the State (with great diffidence and hesitation as is 17 W.P. No. 15826/18 evident from the revelation made in the return of the Commission) stalled the process of election to the Municipality in question which had commended on 9/7/18.
11.3 The reason shown by the State of non publication of notification regarding reservation of wards in the gazette is not a good reason for stalling the process of election once commenced. 11.3(a) A bare reading of Rule 6 of Reservation Rules reveals that calculation required for reserving wards u/S. 29-A is to be undertaken and accomplished by the Prescribed Authority (Collector Shivpuri) in his capacity as the delegatee of the State Govt. This obligation was duly discharged by Collector Shivpuri in the present case vide Annexure P/5. Whereafter intimation was sent to the State by the Prescribed Authority about the details of reservation of wards as per Rule 7 of Reservation Rules. The only step which remained to be performed was publication of details of reservation of wards in the gazette by the State Government as per Rule 7 of Reservation Rules.
11.3(b) Non-publication in the gazette of the details about reservation of wards, in the considered opinion of this court, is not an essential prerequisite for holding of election to a municipality provided the process adopted for reserving wards by the Prescribed 18 W.P. No. 15826/18 Authority (Collector Shivpuri who is the delegatee of the State Government) is informed by the Prescribed Authority to the State Government. The State Government in the present case instead of publishing the said information of reservation of wards received from the prescribed authority in the gazette, found fault in the process of reservation adopted by Collector Shivpuri. 11.3(c) The Collector Shivpuri as Prescribed Authority is a delegate of the State Government while undertaking the process of reservation of wards under 1961 Act and thus acts for and on behalf of the State Government.
11.3(d) Plain reading of Rule 7 of Reservation Rules does not reveal that any power is vested with the State to find fault with the process of reservation of wards conducted by Prescribed Authority (Collector Shivpuri). Under Rule 7, State is merely to act as a post office by publishing in the official gazette information about reservation of wards received from the Prescribed Authority and do nothing more or less.
11.3(e) From the scheme of the 1961 Act and Rules framed thereunder it is vivid that publication in the gazette about the details of reservation of wards is not an essential pre-requisite of municipal election. A priori, non-publication of reservation details, provided 19 W.P. No. 15826/18 the prescribed authority (Collector) has discharged his obligation u/R. 6 and 7 of Reservation Rules, can not come in way of the Commission to discharge it's Constitution and statutory obligation to conduct and conclude the process of municipal election within the time frame prescribed.
12. From the above discussion, it is crystal clear that the Commission had no authority in law to issue impugned order dated 10/7/18 for stalling the process of election to the Municipality in question which had commenced by announcement and publication of election programme on 9/7/18.
13. Before parting it would be appropriate to comment upon the covert act of the State in persuading the Commission to issue impugned letter for reasons unsustainable in law. 13.1 The Commission is exclusively vested with superintendence, direction and control of preparation of electoral rolls, and the conduct of, all elections to the Municipalities as per Section 32 of 1961 Act. The entire process of election from the stage of determination of number and extent of wards till the declaration of results of municipal election is primarily divided into two parts. The part which lies within the exclusive domain of executive (State Government and it's functionaries) is the determination of number 20 W.P. No. 15826/18 and extent of wards and reservation of seats/wards in terms of Section 29 and 29-A of 1961 Act. The function of determination of number and extent of wards is performed exclusively by the State Government whereas the function of reservation of seats u/S. 29-A of 1961 Act is performed by the Prescribed Authority (Collector) on behalf of State Government under the Reservation Rules. 13.2 After process of determination of number and extent of wards by the State Government and the reservation of seats by the Collector of the concerned district is over, further process of election starting from declaration of election programme under Rule 21 and 22 of Nirvachan Niyam till conduction of election by declaration of result lies exclusively within the domain of the Commission.
13.3 As such the point where the power, jurisdictional and function of the State Government and its functionaries come to an end and the power, jurisdiction and function of Commission commences exclusively is the declaration of election programme u/R 21 and 22 of Nirvachan Niyam.
13.4 Once the election programme is declared, State Government and its functionaries have no jurisdiction, power or authority to interfere with the process of election.
21W.P. No. 15826/18 13.5 Only superior courts having the power of judicial review either under Article 226 or under 32 of the Constitution are empowered to interfere with the process of election once started but only to a limited extent as held by the Apex Court in various pronouncement including Election Commission of India Vs. Ashok Kumar & ors 2000 (8) SCC 216 (Para 32).
14. Consequently, the State and its functionaries by persuading the Commission to stall the election process which had commenced on 9/7/18, had no authority in law to do so. By doing so State Government has usurped the power of the Commission dehorse the Constitution, 1961 Act and the Rules framed thereunder.
15. It is pertinent to point out that the anxiety of State Government of non-publication of details of reservation of wards in the gazette may ostensibly appear to be reasonable but in actuality is not. The first reason as already explained above is that the necessary statutory procedure for reservation of seats had already been accomplished by the Collector (the delegate of the State Government) and thus the only function left was to publish the said information in the official gazette by the State Government which has already been held supra to be not mandatory. 15.1 Second reason being that in a democratic set up under our 22 W.P. No. 15826/18 constitution the concept of election is paramount without which there would be no democracy. Election to the Municipality in question which was supposed to be held before February, 2018 were delayed and the urban administration of the municipal area within Narwar Municipality was being managed by individuals appointed by the Government but not elected representatives. This situation is abhorrent to the concept of democracy. For a mere technical and minor defect of non-publication of details about reservation of seats in the official gazette, the State Government for reasons best known to it delayed the holding of election and even went to the extent of persuading the Commission to exercise a power not vested in it to stall election process which had commenced.
15.2 The concept of democracy is one of the basic features of the Constitution as is evident from the following extract of the Apex Court decision in its celebrated case of His Holiness Kesavnanda Bharati Sripadagalvaru Vs. State of Kerala and Anr. 1973 (4) SCC 225 :-
"The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor Parliament would not be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic 23 W.P. No. 15826/18 elements of the constitutional structure. (These cannot be catalogued but can only be illustrated) :
(1) The supremacy of the Constitution.
(2) Republican and democratic form of Government and sovereignty of the country.
(3) Secular and federal character of the Constitution.
(4) Demarcation of power between the legislature, the executive and the judiciary.
(5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV.
(6) The unity and the integrity of the nation."
Sikri C.J., who was also Member of 13-Judge Bench, held as follows:-
"The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution.
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution.
(4) Separation of powers between the legislature, the executive and the judiciary.
(5) Federal character of the Constitution."
The aforesaid basic structure doctrine has since been followed till date in various decisions of the Apex Court including I.R. Coelho (dead) by LRs. Vs. State of T.N. (2007) 2 SCC 1.
16. Reservation on the other hand is not part of the basic structure of Constitution and thus has to give way to democracy/elections in case of conflict between the two. The process of election herein 24 W.P. No. 15826/18 which had commenced on 9/7/18 could not have been stalled for a technical defect noticed by the State in reservation of seats. Election is being a concomitant of democracy and thus of basic structure doctrine cannot be allowed to be overshadowed by a comparatively inferior concept of reservation.
RELIEF
17. Consequently, this court is left with no option but to interfere in the matter.
(i) Accordingly, impugned order dated 10/7/18 passed in F- 70NN-14/2018/V/508 by M.P. State Election Commission Bhopal vide Annexure P/8 stalling/holding in abeyance the process of election to Nagar Parishad Narwar District Shivpuri is quashed.
(ii) Respondent No.2 by issuing a writ of mandamus is directed to conduct and conclude the election to the Municipality of Narwar (Distt. Shivpuri) by restarting the process from the stage of re-publication of election programme under Rule 21 and 22 of Nirvachan Niyam and conclude the process of election at the earliest without any unnecessary delay on the basis of available data in regard to delimitation of wards and reservation of wards.
25W.P. No. 15826/18
(iii) Due to blatant violation of mandatory statutory rules and constitutional provisions and for depriving the citizens of Narwar town to be represented by elected representatives from February, 2018 till date, the State and as well as the Commission are saddled with exemplary cost of Rs. 50,000/- each to be deposited in District Unit of Red Cross Society of the District of Shivpuri to be used for welfare of the citizens of municipal area of Narwar Municipality.
(iv) The Commission and the State shall also jointly pay cost of this petition to the petitioner which is quantified at Rs. 5000/- by digital transfer in the bank account of petitioner.
(v) The directions of payment of cost be complied with within a period of two months from the date of receipt of certified copy of this order.
(Sheel Nagu) Judge 25/04/2019 ojha YOGENDR A OJHA 2019.04.2 5 18:45:13
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