Jharkhand High Court
The State Of Jharkhand vs Roshini Khalkho on 12 September, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 57 of 2024
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1.The State of Jharkhand.
2.The Chief Secretary, having its Office at Project Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.
3.The Principal Secretary, Urban Development and Housing Department, Jharkhand, Office at Project Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.
... ... Respondent No. 1, 2 and 3/Appellants Versus
1.Roshini Khalkho, aged about 34 years, w/o Sujit Oraon, r/o Circular Road, Nagra Toli, P.O. & P.S. Lalpur, District Ranchi, Jharkhand.
2.Arun Kumar Jha, aged about 56 years, s/o Surendra Jha, r/o Harmu Housing Colony, P.O. & P.S. Argora, District Ranchi, Jharkhand.
3.Binod Kumar Singh, aged about 54 years, s/o Navlakh Singh, r/o Vidya Nagar, P.O. Hehal, P.S. Sukhdeonagar, District Ranchi, Jharkhand.
4.Sunil Kumar Yadav, aged about 49 years, s/o Misrilal Yadav, r/o Upper Bajar, Ranchi, P.O. Upper Bajar, P.S.Kotwali, District Ranchi, Jharkhand.
... ... Writ Petitioners/Respondents 5.The Municipal Commissioner, Ranchi Municipal
Corporation, Ranchi, Office at Near Kutchhary Chowk, Ranchi, P.O GPO, P.S. Kotwali, District Ranchi.
... ...Respondent No. 4/Respondent with L.P.A. No. 55 of 2024
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1.The State of Jharkhand through the Chief Secretary, having its Office at Project Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.
2.The Secretary, Town Development and Housing Development, Jharkhand, Office at Project Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.
... ... Respondent No. 1 and 3/Appellants Versus
1.Rina Kumari, aged about 43 years, wife of Arvind Kumar Mandal, resident of: Ward No. 9, Ghandhi Kutir, P.O. & P.S. Jamtara, District Jamtara, Jharkhand..
... ... Writ Petitioner/Respondent
2.The Election Commissioner, State Election Commission, Jharkhand, Nirwachan Bhawan, New Market Chowk, Ratu Road, P.O. + P.S. Sukhdeonagar, Ranchi ... ...Respondent No. 2/Respondent -1-
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Sachin Kumar, AAG-II For the Respondents: Mr. Prashant Kumar Singh, Advocate Mr. Binod Singh, Advocate [In LPA. No. 57 of 2024] For the Election Commission:
Mr. Sumeet Gadodia, Advocate
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CAV on 28/08/2024 Pronounced on 12/09/2024 Per Sujit Narayan Prasad, ACJ:
1. Since the issues involved in the both the intra-court appeals are identical, as such with the consent of learned counsel for the parties, the same were heard together and are being disposed of by this common order.
Prayer:
2. The instant intra-court appeals, under clause 10 of the Letters Patent, are directed against common order/judgment dated 04.01.2024 passed by learned Single Judge of this Court in W.P.(C) No. 1923 of 2023 with W.P.(C) No. 2290 of 2023, whereby and whereunder while allowing the writ petitions, the State Government was directed to notify the elections, immediately on receipt of the recommendation of the State Election Commission, in relation to Municipal Corporation, Municipalities and Nagar Panchayats in the State of Jharkhand and further directed the State to ensure all facilities so that the democratic process of election of -2- Municipal Corporation, Municipalities and Nagar Panchayats be not hampered or hindered by any means.
Factual Matrix:
3. The brief facts of the case, as per the pleadings made in the writ petitions, reads as under:
4. The petitioner, in writ petition being WP(C) No.1923 of 2023, which subject matter of L.P.A. No. 55 of 2024, has made a prayer for direction upon the respondents-State to immediately and forthwith notify the election process for Nagar Panchayat, Jamtara, as the term of Nagar Panchayat, Jamtara was to expire in May 2023. In alternate, prayer has been made that if the elections are not notified and could not be held before the expiry of the term of the Nagar Panchyat, the seating members be allowed to function till the fresh elections are held. Further prayer has been made to quash the order by which, after expiry of the term of Nagar Panchayat, Jamtara, Administrator has been appointed.
5. Likewise, the writ petitioners in WP(C) No. 2290 of 2023, which is the subject matter of L.P.A. No. 57 of 2024, has made a prayer for a direction to hold election of Ranchi Municipal Corporation in view of the mandate under Article 243(U) of the Constitution of India and also in terms of Section 16(4) and 20 of the Jharkhand Municipal Act, 2011, since five years term of the elected body has already expired -3- on 27.04.2023. Further prayer has been made to quash the Notification No. 1680 dated 28.4.2023, whereby administrator has been appointed for administering the activities of the municipality, after expiry of the term of the elected members.
6. In sum and substance, in both writ petitions, the prayer has been made for a direction upon the respondents (appellants herein) to notify the election of Municipal Corporations, Municipalities and Nagar Panchayats and alternatively, i.e., the seating members be allowed to function till the fresh elections are held.
7. Learned counsel for the writ petitioner during the course of argument has brought to the notice of this Court that in the entire State of Jharkhand, the term of all the Nagar Panchayats and Municipalities have come to an end and all these bodies are administered by Administrators in place of any elected body.
8. The learned Single Judge, after hearing learned counsel for the parties and taking note of the constitutional mandate and law laid down by the Hon‟ble Apex Court, allowed the writ petitions directing the State Government to notify the elections, immediately on receipt of the recommendation of the State Election Commission, in relation to Municipal Corporation, Municipalities and Nagar Panchayats in the -4- State of Jharkhand and further directed the State to ensure all facilities so that the democratic process of election of Municipal Corporation, Municipalities and Nagar Panchayats be not hampered or hindered by any means.
9. It is evident from the factual aspects that the election of Deoghar Municipal Corporation, Dhanband Municipal Corporation and Chas Municipal Corporation was held in the months of May-June, 2015 and even after expiry of the tenure of the elected mayors as well as ward counselor on 18.06.2020, there was no election.
10. Further, the election of Ranchi Municipal Corporation and other 34 urban local bodies which were held in the year 2018 and the tenure of the representatives including the Mayors, Chairpersons and Ward Counselors came to end on 27.04.2023 but there was no endeavor on the part of the State to conduct election for the purpose of election of mayors as well as ward counselor of the urban local bodies, as such in the backdrop of these facts, writ petitions have been filed for issuance a direction upon the respondents to notify the election of Municipal Corporation, Municipality and Nagar Panchayat so as to achieve the object and intent of Article 243(U) of the Constitution of India as well as provision of 16(4) and 20 of the Jharkhand Municipal Act, 2011 and -5- alternatively, i.e., till elections are not notified the seating members be allowed to function.
11. The learned writ Court has called the State as also the State Election Commission.
12. The State has taken the plea that in terms of the judgment rendered by Hon‟ble Apex Court in the case of Vikas Kishanrao Gawali V. State of Maharashtra, reported in (2021) 6 SCC 73, the "triple test formalities" had to be conducted and completed for identifying seats for Other Backward Classes (OBC) for reservation. The ground has been taken that without identifying the seats to be reserved for OBCs with the "tripe test formalities", no election of the local bodies can be held. If the elections are held without reserving seats for OBC, the same will create problem and will amount to depriving the OBC.
13. The State Election Commission has come out with the stand that the State Election Commission had already taken a decision and had recommended holding of election of Municipal Corporation, Municipalities and Nagar Panchayat, not only once but twice and the State had once notified the same but cancelled the said notification and on the second occasion, they did not even bothered to notify the same as such no election has been notified by the State Election Commission.
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14. The learned writ Court, has taken into consideration the constitutional mandate, as stipulated in part IX-A of the Constitution of India which deals with Municipalities and further putting reliance upon the judgment rendered in the case of Suresh Mahajan Vs. State of M.P. reported in (2022) 12 SCC 770; K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another, reported in (2010) 7 SCC 202 and judgment rendered in the case of Vikas Kishanrao Gawali V. State of Maharashtra (supra) has directed the State Government to notify the elections, immediately on receipt of the recommendation of the State Election Commission, in relation to Municipal Corporation, Municipalities and Nagar Panchayats in the State of Jharkhand and further directed the State to ensure all facilities so that the democratic process of election of Municipal Corporation, Municipalities and Nagar Panchayats be not hampered or hindered by any means, which is the subject matter of instant intra-court appeals. Argument on behalf of appellants-State:
15. Mr. Sachin Kumar, learned A.A.G. II appearing for the appellants-State has challenged the order passed by learned writ Court on the following grounds:
I. That the learned Single Judge has not appreciated the factual aspect regarding the issue of "triple test -7- formalities", which is meant to secure the proportionate reservation in the local bodies to the members of the Other Backward Classes (OBC), which is under process by virtue of issuance of notification by the State Government.
II. The specific plea was taken before the learned Single Judge that in absence of the census based upon the caste of the OBC, the considerable right of the members of the OBC will not be considered rather they will be deprived from the right to contest the election as per the mandate since the object of the "triple test formalities" is to reserve the seats for OBC category.
III. The ground has been taken that the Hon‟ble Apex Court has also taken into consideration the aforesaid aspect of the matter in the case of Chandra Prakash Choudhary Vs. The State of Jharkhand & Anr. [Writ Petition (s) (Civil) No(s). 239 of 2022] wherein the State has apprised the Hon‟ble Apex Court that State has already initiated triple test process as laid down by the Hon‟ble Apex Court in K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another (supra) and reiterated in the case of Vikas Kishanrao Gawali V. State of -8- Maharashtra (supra) in that view of the matter, the Hon‟ble Apex Court has made an observation that upon completion of that process for future elections, the State may take necessary steps and consider of providing such reservation.
IV. It has further been contended that by taking into consideration the aforesaid fact, the Hon‟ble Apex Court has been pleased to observe that upon completion of that process for future elections, the State may take necessary steps and consider of providing such reservation.
V. It has been contended that the Hon‟ble Apex Court is also of the view that before conducting the elections, the requirement as carved out in the judicial pronouncements of the Hon‟ble Apex Court regarding providing reservation to the OBCs is required to be fulfilled. But the aforesaid fact has not been taken into consideration by the learned Single Judge in the impugned order.
16. Learned counsel for the State on the aforesaid grounds has submitted that the order passed by learned Single Judge needs interference by this Court.
Submission on behalf of the learned counsel for the writ petitioners:
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17. Learned counsel for the respondents-writ petitioners have jointly defended the order passed by learned Single Judge by raising the following grounds:
I. The learned Single Judge has passed the order directing the State to notify the election for local urban bodies, which cannot be said to suffer from an error reason being that the very object of the constitutional amendment as inserted by 74th Amendment Act, 1992, which enjoins upon the State to establish a three-tier system of municipalities in the urban areas and if any ground(s) whatsoever, the election is not conducted then it will be said to be non-compliance of the constitutional mandate. II. It has been submitted that the learned Single Judge has taken into consideration the aforesaid aspect of the matter and by putting reliance upon the judgment rendered in the case of Suresh Mahajan Vs. State of M.P. (supra); K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another, (supra) and judgment rendered in the case of Vikas Kishanrao Gawali V. State of Maharashtra (supra) has passed direction upon the State to notify the elections, immediately on receipt of the recommendation of the State Election Commission, in
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relation to Municipal Corporation, Municipalities and Nagar Panchayats in the State of Jharkhand, thus it cannot be said that the judgment passed by the learned Single Judge suffers from an error. III. It has been contended that the ground which has been agitated in assailing the impugned judgment passed by learned Single Judge is the order passed by Hon‟ble Supreme Court in the case of Chandra Prakash Choudhary Vs. The State of Jharkhand & Anr. (supra) although the said judgment/order has not laid down any proposition rather it is an order passed on the backdrop of the fact that when the State has apprised the Hon‟ble Apex Court that State has already initiated triple test process as laid down by this Court in K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another (supra) and reiterated in the case of Vikas Kishanrao Gawali V. State of Maharashtra (supra) in that view of the matter, the Hon‟ble Apex Court has made an observation that upon completion of that process for future elections, the State may take necessary steps and consider of providing such reservation.
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IV. It has been contended that the very purport of the said order is that the process which has begun for „triple test formality‟, the election will not wait for the conclusion of the said formalities rather the said formality will be concluded, the same will be taken into consideration for future elections. V. It has been contended that the purport of the said order cannot be for the purpose of withholding the election otherwise the very mandate of 74th amendment of the Constitution of India by which the Article 243 U has been inserted, will not be frustrated but it will be violation of the constitutional mandate and contrary to the set-up of the three-tier democratic system.
18. Learned counsel for the writ- petitioners on the aforesaid pretext has submitted that order passed by the learned Single Judge suffers from no error and as such requires no interference by this Court.
Analysis:
19. We have heard learned counsel for the parties, gone across the finding recorded by learned Single Judge in the impugned order.
20. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to
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refer the idea behind insertion of Article 243 U by virtue of 74th Amendment Act, 1992.
21. It need to refer herein that the 73rd and the 74th Constitutional Amendment Acts, 1992 enjoin upon the states to establish a three-tier system of Panchayats at the village, intermediate and district levels; and Municipalities in the urban areas respectively. States are expected to devolve adequate powers, responsibilities and finances upon these bodies so as to enable them to prepare plans and implement schemes for economic development and social justice. These Acts provide a basic framework of decentralization of powers and authorities to the Panchayati Raj/Municipal bodies at different levels.
22. The Statement of Objects and Reasons of the Constitution (74th Amendment) Act, 1992, briefly outlined the object and purpose for which the Constitution Amendment was brought in. It is useful to refer to the Statement of Objects and Reasons of the Constitution Amendment which is to the following effect:
"Statement of Objects and Reasons
1. In many States local bodies have become weak and ineffective on account of a variety of reasons, including the failure to hold regular elections, prolonged supersession and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self-government.
2. Having regard to these inadequacies, it is considered
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necessary that provisions relating to urban local bodies are incorporated in the Constitution particularly for--
(i) putting on a firmer footing the relationship between the State Government and the urban local bodies with respect to--
(a) the functions and taxation powers; and
(b) arrangements for revenue sharing;
(ii) ensuring regular conduct of elections;
(iii) ensuring timely elections in the case of supersession; and
(iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women."
23. The further object of introducing Part IX-A was that in many States the local bodies were not working properly, and timely elections were not being held and nominated bodies were continuing for long periods. Elections had been irregular and many times unnecessarily delayed or postponed and the elected bodies had been superseded or suspended without adequate justification at the whims and fancies of the State authorities.
24. The Hon‟ble Apex Court while noticing the object and purpose of the Constitution (74th Amendment) Act, 1992 in the case of Kishansing Tomar v. Municipal Corpn., Ahmedabad, (2006) 8 SCC 352] has observed as under:
"12. It may be noted that Part IX-A was inserted in the Constitution by virtue of the Constitution (Seventy-fourth) Amendment Act, 1992. The object of introducing these provisions was that in many States the local bodies were not working properly and the timely elections were not being held and the nominated bodies were continuing for long periods. Elections had been irregular and many times unnecessarily delayed or postponed and the elected bodies had been superseded or suspended without adequate
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justification at the whims and fancies of the State authorities. These views were expressed by the then Minister of State for Urban Development while introducing the Constitution Amendment Bill before Parliament and thus the new provisions were added in the Constitution with a view to restore the rightful place in political governance for local bodies. It was considered necessary to provide a constitutional status to such bodies and to ensure regular and fair conduct of elections. In the Statement of Objects and Reasons in the Constitution Amendment Bill relating to urban local bodies, it was stated...."
25. Further the Hon‟ble Apex Court in the case of NOIDA v. CIT, (2018) 9 SCC 351 had categorically observed that the Municipalities are created as vibrant democratic units of self- government and the duration of Municipality was provided for five years contemplating regular election for electing representatives to represent the Municipality.
26. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:
28. The constitutional provisions as contained in Part IX-A delineate that the Constitution itself provided for constitution of Municipalities, duration of Municipalities, powers of Authorities and responsibilities of the Municipalities. The Municipalities are created as vibrant democratic units of self-
government. The duration of Municipality was provided for five years contemplating regular election for electing representatives to represent the Municipality...."
27. Thus, from the aforesaid discussion it is evident that the provisions introduced vide Part IX-A were intended to restore the local bodies to their rightful place in political governance. It was considered necessary to provide a constitutional status
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to such bodies and to ensure regular and fair conduct of elections. Part IX-A also provides for constitution of Municipalities (Article 243-Q), composition of Municipalities (Article 243-R), reservation of seats (Article 243-T), duration of Municipalities (Article 243-U), powers, authority and responsibilities of Municipalities (Article 243-W), powers to impose taxes by, and funds of the Municipalities (Article 243- X), and audit of accounts of Municipalities (Article 243-Z). Further, the aforesaid part also introduces provisions relating to election (Article 243-ZA).
28. Further, the 74th Constitutional Amendment Act authorized the State Legislatures to enact laws to endow local bodies with powers and authority as necessary to enable them to function as institutions of Self-Government and make provisions for devolution of powers and responsibilities so as to enable the local bodies to prepare plans and implement schemes for economic development and social justice.
29. Thus, it is evident that this Act provides a basic framework of decentralization of powers and authorities to the Municipal bodies at different levels. However, responsibility for giving it a practical shape rests with the States. States are expected to act in accordance with the
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spirit of the Acts for establishing a strong and viable system of Local Self-Government.
30. The Hon‟ble Apex Court in the case of Suresh Mahajan Vs. State of M.P. (supra) has specifically held that the constitutional mandate is inviolable. Neither the State Election Commission nor the State Government or the State Legislature including the court in exercise of Article 142 of the Constitution of India can countenance dispensation to the contrary. For ready reference, paragraph 8 of the aforesaid judgment is quoted as under:
"8.This constitutional mandate is inviolable. Neither the State Election Commission nor the State Government of for that matter the State Legislature, including this Court in exercise of powers under Article 142 of the Constitution of India can countenance dispensation to the country."
31. It is, thus, evident that the constitutional mandate as per insertion in Part IX-A by way of 74th Amendment Act, 1992, the three tier system has been set up with the object and reasons that in many States local bodies have become week and ineffective on account of variety of reasons including failure to held elections, prolonged supersession and inadequate devolution of powers and functions, as such in the aforesaid backdrop and the underlying idea that the local bodies is not working properly, and timely elections were not being held and nominated bodies were continuing for long
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periods, the Constitution has been amended by way of 74th Amendment Act, 1992.
32. The very object of the insertion of Article been dealt with by Hon‟ble Apex Court in the case of Kishansing Tomar v. Municipal Corpn., Ahmedabad (supra) wherein at paragraph 12 it has been observed that the object of introducing these provisions was that in many States the local bodies were not working properly and the timely elections were not being held and the nominated bodies were continuing for long periods. Elections had been irregular and many times unnecessarily delayed or postponed and the elected bodies had been superseded or suspended without adequate justification at the whims and fancies of the State authorities. Therefore, it was considered necessary to provide a constitutional status to such bodies and to ensure regular and fair conduct of elections.
33. The said view has also been reiterated in the case of NOIDA v. CIT (supra) wherein it has categorically been observed that the Municipalities are created as vibrant democratic units of self-government and the duration of Municipality was provided for five years contemplating regular election for electing representatives to represent the Municipality.
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34. Different provisions have been inserted as under Part IX A to restore the local bodies to their rightful place in political governance. Part IX-A Article 243-Q of the Constitution provides for constitution of Municipalities; Article 243-R provides composition of Municipalities; Article 243-T provides reservation of seats; Article 243-U provides duration of Municipalities; Article 243-W provides powers, authority and responsibilities of Municipalities; Article 243-X powers to impose taxes by, and funds of the Municipalities; Article 243-Z says about audit of accounts of Municipalities. Further, the aforesaid part also introduces provisions relating to election as under Article 243-ZA.
35. The provisions of Article 243-ZF are pari materia to the provisions of Article 243-N, insofar as it provides that any provision of a law relating to Municipalities in a State immediately before the commencement of the 74th Amendment, which is inconsistent with the provisions of Part IX-A shall continue to be in force until amended, repealed or until expiration of one year from the date of commencement of the Amending Act.
36. It needs to refer herein that after the said Amendment Act, due amendment has been brought in the statute by way of Jharkhand Municipal Act, 2011, which contains various provisions including Section 16 [Constitution of Council],
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which says that all the seats specified in clause 2(a) shall be filled by direct elections and for this purpose each municipal area shall be divided into territorial constituencies referred as Wards.
37. Section 16, Clause 2(a) thereof speaks that in every council, as nearly as possible but not exceeding fifty percent of the total seats of elected members shall be reserved for
(i).Scheduled Castes; (ii).Schedules Tribes; (iii).Backward Classes; and (iv).Women.
38. It is, thus, evident that provision has been carved out by virtue of Act to provide the benefit of reservation to the Scheduled Castes; Schedules Tribes; Backward Classes; and Women. Further in view of aforesaid provision, Section 20 provides as contained in Jharkhand Municipal Act, 2011, that the term of the councilors will be five years from the date of first meeting of the municipality under Section 73 or depending upon the other eventuality as contained under Condition No. (a) or (b).
39. It is thus evident that under the amended rule, which has been brought after insertion of Part IX-A by way of 74th Constitution Amendment, the election of urban local bodies has to be conducted before the expiry of five years so that newly elected body shall be in office after expiry of five years term.
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40. Now, adverting to the factual aspect which led to filing of the writ petitions seeking a direction to notify the elections, immediately on receipt of the recommendation of the State Election Commission, in relation to Municipal Corporation, Municipalities and Nagar Panchayats in the State of Jharkhand, it is admitted by the parties that in the entire State of Jharkhand, the term of all the Nagar Panchayats and Municipalities have come to an end and all these bodies are administered by Administrators in place of any elected body.
41. The writ petitioners, in the aforesaid backdrop, have approached this Court for a direction upon the respondents to notify the election of Municipal Corporation, Municipality and Nagar Panchayat and alternatively, i.e., till elections are not notified the seating members be allowed to function till the fresh elections are held.
42. It is evident from the affidavit filed on behalf of the respondent-State Election Commission that twice recommendations were made by the State Election Commission for holding election of Municipal Corporation, Municipalities and Nagar Panchayat. The State had once notified the same but cancelled the said notification and on the second occasion, the State even did not bother to notify the same.
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43. The learned writ Court has passed order taking into consideration the very purport/object/intent of the 74th Constitutional Amendment to have the three-tier system as also the rule formulated by the State of Jharkhand, as per the requirement of the 74th amendment for conducting of the election of urban local bodies, the period of the said bodies will be of five years.
44. The learned Single Judge has also taken into consideration the fact which has been raised on behalf of State with respect to the issue of "triple test formalities" and while weighing the balance and basing upon the judgment rendered in the case of Suresh Mahajan Vs. State of M.P. (supra), wherein it has been laid down that the constitutional mandate is inviolable. Neither the State Election Commission nor the State Government nor the State Legislature including the court in exercise of Article 142 of the Constitution of India can countenance dispensation to the contrary.
45. The Hon'ble Supreme Court in the case of Suresh Mahajan (Supra), considering all the aspects has held that the election can very well be held and non-compliance of "triple test formalities" cannot come in the way to hold election.
46. It is evident that in the case of Suresh Mahajan (supra), the issue of reservation of OBC's seat had cropped
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up, which was in fact considered and a direction was given to the State to hold election, even if the "tripe test formalities"
remained to be fulfilled. In the aforesaid judgment, the Hon'ble Supreme Court has done away with the said impediment. The situation is not different here.
47. The Hon'ble Supreme Court in the aforesaid case at paragraph 9 had taken into consideration of the fact that a large number of local bodies are functioning without elected representatives and held that this is bordering on breakdown of rule of law and more so, palpable infraction of the Constitutional Mandate.
48. For ready reference, paragraph 9 of the judgment is quoted as under:
"9. Despite such constitutional mandate, the reality in the State of Madhya Pradesh as of now, is that, more than 23,263 local bodies are functioning without the elected representatives for last over two years and more. This is bordering on breakdown of rule of law and more so, palpable infraction of the constitutional mandate qua the existence and functioning of such local self-government, which cannot be countenanced."
49. Further at paragraph 11, the Hon'ble Supreme Court has held that even any amendment effected to enactments also cannot be reckoned as a legitimate ground for protracting the issue of election programme of the local bodies concerned. It is necessary to quote paragraph 11 of the judgment, which reads as under:
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"11 In any case, the ongoing activity of delimitation or formation of ward cannot be a legitimate ground to be set forth by any authority much less the State Election Commission to not discharge its constitutional obligation in notifying the election programme at the opportune time and to ensure that the elected body is installed before the expiry of 5 (five) years' term of the outgoing elected body. If there is need to undertake delimitation -- which indeed is a continuous exercise to be undertaken by the authority concerned -- it ought to be commenced well in advance to ensure that the elections of the local body concerned are notified in time so that the elected body would be able to take over the reigns of its administration without any disruption and continuity of governance (thereby upholding the tenet of the Government of the people, by the people and for the people). In other words, the amendment effected to the stated enactments cannot be reckoned as a legitimate ground for protracting the issue of election programme of the local bodies concerned."
50. So far as "triple test formalities" is concerned, at paragraph 13 the Hon'ble Supreme Court has observed that non-compliance of the triple test formality cannot be a ground to defer the election.
51. For ready reference, paragraph 13 of the said judgment, reads as under:-
"13. For, until the triple test formality is completed "in all respects" by the State Government, no reservation for Other Backward Classes can be provisioned; and if that exercise cannot be completed before the issue of election programme by the State Election Commission, the seats (except reserved for the Scheduled Castes and Scheduled Tribes which is a constitutional requirement), the rest of the seats must be notified as for the General category."
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52. Thus, it is evident from the aforesaid paragraphs of the judgment rendered in Suresh Mahajan (surpa), that the Election should be notified even if the "triple test formalities"
has not yet been completed. It is, thus, clear that elections can be held even if "triple test formalities" is under process and/or has not yet been completed. Non-completion of the "triple test formalities‟ for identifying seats to be reserved for OBCs is not at all a ground to defer or delay election of local self-government.
53. Thus, in view of the judgment rendered in the case of Suresh Mahajan (Supra), it emanates that it is the constitutional duty of the State Election Commission to recommend for holding of Election in the Municipal Corporation, Municipalities and Nagar Panchayat, not only for Ranchi Municipal Corporation and Jamtara Nagar Parishad, but also for all the other Municipalities, within the State of Jharkhand, whose term has come to an end.
54. However, learned counsel for the State has relied upon the judgment rendered by Hon‟ble Apex Court in the case of K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another (supra), wherein it has been held therein that exercise has to be undertaken to identify the seats to be reserved for the OBCs for that purpose triple test formality has to be conducted.
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55. Further reliance has been placed on the case of Vikas Kishanrao Gawali V. State of Maharashtra, (supra), wherein the Hon‟ble Apex Court has observed that the "triple test formalities" had to be conducted and completed for identifying seats for Other Backward Classes (OBC) for reservation. However, it has further been held therein that without identifying the seats to be reserved for OBCs with the "tripe test formalities", no election of the local bodies can be held. It has further been observed that if the elections are held without reserving seats for OBC, the same will create problem and will amount to depriving the OBC.
56. Relying upon said judgments, the instant intra-court appeals have been preferred by the State on the ground that the formality of triple test has not been concluded, as such election would be held only after completion of triple test formalities and if during the aforesaid course the election will be notified, the members of the OBCs will be deprived from their right to get the benefit of reservation.
57. It is not in dispute that the mandate of the Constitution is to be prevailed upon all the statutory command on the principle that the constitution is above all the statute and all the statute which has been formulated is to remain consistent with the constitutional mandate.
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58. Further, if any provision has been made under the Constitution, then the same binds everybody including the Court of law and each and every of the country. The mandate of 74th amendment by insertion of Part IX A in the Constitution of India is the core consideration which is to be considered in the instant appeals.
59. We are living in a democratic set-up wherein the election is the soul of the system for the purpose of electing the representatives to govern the State said to be governance by the people by its elected representatives.
60. The election for the parliament or the State legislature has also been mandated to be conducted prior to the expiry of five years so that in no stretch of imagination the tenure of the elected members either of the Parliament or the State Legislative Assembly be allowed to be exceeded to the period of five years. If the election will not be conducted within the expiry of 5 years, then the very fundamental of the democratic set up, which is the soul of our Constitution will lose its force and the democracy will come to end.
61. The same principle, according to our considered view, is applicable in the facts of election of the people‟s representative in the local bodies and then only it will be said that the mandate of 74th Constitutional Amendment Act, 1992 to be achieved.
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62. The question, which is raised by the State regarding depriving of the right of the members of the OBCs in absence of the completion of „triple test formalities‟ as mandated by Hon‟ble Apex Court in the case of Vikas Kishanrao Gawali V. State of Maharashtra, (supra) wherein it has been held that the "triple test formalities" had to be conducted and completed for identifying seats for Other Backward Classes (OBC) for reservation. The ground has been taken that without identifying the seats to be reserved for OBCs with the "tripe test formalities", no election of the local bodies can be held. If the elections are held without reserving seats for OBC, the same will create problem and will amount to depriving the OBC.
63. Therefore, the question which requires consideration as to whether in the garb of non-conclusion of "tripe test formalities" the entire democratic set-up to have the three-tier system in the urban areas, will be permissible?
64. This Court is of the view that the same is not permissible and cannot be permissible for the reason that principle of "tripe test formalities" is the principle laid down so as to give the benefit of reservation to the OBCs. The aforesaid principle has been adopted by the State of Jharkhand way back in the year 2011 by formulating rule in this regard, namely, Jharkhand Municipality Act, 2011 but
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no endeavor has been taken by the State conclude the "triple test formalities" during the subsistence period of tenure of elected members of urban local bodies as the election of Deoghar Municipal Corporation, Dhanbad Municipal Corporation and Chas Municipal Corporation was held in the months of May-June, 2015 and even after expiry of the tenure of the elected mayors as well as ward counselor on 18.06.2020, no election was held. Further, the election of Ranchi Municipal Corporation and other 34 urban local bodies which were held in the year 2018 and the tenure of the representatives including the Mayors, Chairpersons and Ward Counselors came to end on 27.04.2023 but there was no endeavor on the part of the State to conduct election for the purpose of election of mayors as well as ward counselor of the urban local bodies.
65. The State is taking the ground that due to non- conclusion of the "tripe test formalities" if the election will be allowed to be conducted then the members of the OBCs will suffer from the benefit of reservation.
66. The question is that when the Hon‟ble Supreme Court in the case of Suresh Mahajan Vs. State of M.P. (supra) as under paragraph 8 has laid down that neither the State Election Commission nor the State Government or the State Legislature including the court in exercise of Article 142 of
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the Constitution of India can countenance dispensation to the contrary. Therefore, the how can State take the plea that due to non-conclusion of the „triple test formalities‟ the election is not being conducted.
67. If the contention of the State is accepted, then the question is that what would be the proposition laid down by Hon‟ble Apex Court in the case of Suresh Mahajan Vs. State of M.P. (supra) in view of provision of Article 142 of the Constitution of India will become law of land.
68. It is not in dispute the Apex Court has also laid down the law to conduct the "triple test formalities" but the State having not concluded or slow in conducting the same, will not be considered to be coming in the way of the object and intent of the 74th Constitutional Amendment Act.
69. The answer of this Court will be in affirmative reason being that we all are duty bound to follow the constitutional mandate and there cannot be any deviation with the same. If any deviation from the constitutional mandate will be there then the entire system will collapse.
70. We are conscious that nobody will be allowed to break the basic structure of the Constitution of India, which is the soul of the Constitution as mentioned in the preamble making the State a democratic country where country is to be governed by the representative of the people. However, at the
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time when the Constitution was adopted there were two-tier system but subsequently when it was felt necessary, that there must be three tier system in the rural and urban areas, it led in coming with 73rd Amendment and 74th Amendment.
71. The 73rd Amendment established the Panchayati Raj System in the rural areas. This Amendment added Part IX and 11th Schedule to the Constitution and made the State Governments legally obligated to adopt the new system. Whereas 74th amendment established municipality system in urban area. This amendment added IX-A and 12th Schedule to the Constitution, and granted the municipalities constitutional status.
72. It has further been clarified in the said constitutional provision that if any saving is with the rule in consistent to the aforesaid constitutional mandate, then the State is required to amend or repeal the rule and till its repealment the existing rule will prevail.
73. Here, in the State of Jharkhand the Act has already been amended in the year 2011 and subsequently the Rule 2012 was promulgated. Thereafter, the election has also been conducted. The tenure of the same has been expired.
74. The State when has formulated the rule making provision for conducting the electing after every five years, and rule also provides provision for giving benefit to the
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members of the OBCs then the question is that why the State is so lethargic in concluding the triple test formalities. If the State is not pursuing the matter diligently in concluding the triple test formalities, then there is no occasion to flout the constitutional mandate by not conducting the election.
75. The Hon‟ble Apex Court while laying down the law with respect to „triple test formalities‟ cannot be construed to be in obstruction of conducting election rather the Hon‟ble Apex Court while issuing direction upon the State to have „triple test formality‟ is also for the purpose to achieve the constitutional mandate to have the benefit of reservation to the members of OBCs but it does not mean that due to lethargic approach of the State the very mandate of the 74th Constitutional amendment will be allowed to be frustrated.
76. This Court, after having discussed the legal aspect and coming to the judgment/order passed by learned Single Judge, has found that thoughtful consideration has been given regarding the underlying object of the 74th amendment based upon the consideration of the judgment passed by Hon‟ble Apex Court in the case of Suresh Mahajan Vs. State of M.P. (supra); K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another, (supra) and judgment rendered in the case of Vikas Kishanrao Gawali V. State of Maharashtra (supra) as also the issue of triple test formality
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and casting aspersion against the State, the learned Single Judge has come to the conclusion that not notifying to conduct election cannot be said to be in consonance with the constitutional mandate that too when the State Election Commission has recommended for holding election of Municipal Corporation, Municipalities and Nagar Panchayat. The State had once notified the same but cancelled the said notification and on the second occasion, the State even did not bother to notify the same.
77. The learned Single Judge, based upon the aforesaid aspect of the matter, has observed that the Government cannot sit over the recommendation of the State Election Commission and throttle the voice of the people. In fact, the process of election should have started much before the term of sitting members came to an end.
78. So far, the issue of ad hoc arrangement of appointment of administrator in terms of Section 16(8) of the Jharkhand Municipal Act, 2011 is concerned, the learned Single Judge has observed that it is absolutely a temporary arrangement and such temporary arrangement cannot be allowed to continue for long. Thus, it is more important to hold election at the earliest. The basic tenet: - "Government by the people, of the people and for the people" is to be applied, reinforced and implemented in true letter and spirit. Running these
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constitutional bodies by an administrator defies this basic tenet of democracy.
79. In the aforesaid backdrop, it needs to refer herein that the famous utterances of Abraham Lincoln‟s closing remarks of his short yet famous Gettysburg Address of November 19, 1863, have become proverbial as "Government of the people, by the people, for the people" which has been quoted by the learned Single Judge, indeed provides a most succinct definition of democracy.
80. The word democracy comes from the Greek words "demos", meaning people, and "kratos" meaning power; so democracy can be thought of as "power of the people": a way of governing which depends on the will of the people. Democracy, then, is not autocracy or dictatorship, where one person rules; and it is not oligarchy, where a small segment of society rules. A democracy, at least in theory, is government on behalf of all the people, according to their "will". The most obvious ways to participate in government are to vote, or to stand for office and become a representative of the people.
81. Elections are an integral part of democracy, allowing individuals to participate in the selection of their representatives. Elections provide an opportunity for citizens to exercise their right to vote and have a say in the
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governance at the central, state and local level. Therefore, while elections play a significant role in democracy, but it is to be supported by strong democratic institutions.
82. This Court, in view of above and considering the object and intent of 74th amendment, is of the view that there cannot be a different view other than the view taken by learned Single Judge, who has directed the State to notify the elections, immediately on receipt of the recommendation of the State Election Commission, in relation to Municipal Corporation, Municipalities and Nagar Panchayats in the State of Jharkhand and further directed the State to ensure all facilities so that the democratic process of election of Municipal Corporation, Municipalities and Nagar Panchayats be not hampered or hindered by any means.
83. Therefore, this Court is of the view that both the appeals lack merit.
84. Accordingly, both the instant appeals fail and are dismissed.
85. Pending Interlocutory Application, if any, stands disposed of.
(Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Alankar/ A.F.R
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