Gujarat High Court
Virendrasinh Mafaji Vaghela & vs State Of Gujarat & on 21 October, 2015
Equivalent citations: AIR 2016 (NOC) 197 (GUJ.)
Author: Jayant Patel
Bench: Jayant Patel, N.V.Anjaria
C/SCA/16313/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16313 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VIRENDRASINH MAFAJI VAGHELA & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SHAKTISINH GOHIL, LD. ADVOCATE for the Petitioner(s) No. 1 - 2
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR KAMAL TRIVEDI,LD. ADVOCATE GENERAL with MR PK JANI,LD.
ADDITIONAL ADVOCATE GENERAL with MS SANGEETA VISHEN, AGP for
Respondent No.1
MR MIHIR THAKORE, LD. SR. ADVOCATE with MS AMRITA M THAKORE,
ADVOCATE for the Respondent(s) No. 2
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C/SCA/16313/2015 CAV JUDGMENT
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 21/10/2015
CAV JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1.The petitioner No.1, who is the Vice-President of Gandhinagar District Panchayat and petitioner No.2, who is the Voter of Taluka Panchayat of Umrala in Bhavnagar District, have approached this Court by preferring this petition, inter alia, for the relief to declare the provisions of Clause (3) of Ordinance No.2 of 2015 promulgated by the Governor of Gujarat as ultra vires Article 243E of the Constitution of India. Thereafter, additional prayers have been added by the draft amendment declaring Clauses (3), (4) and (5) of Ordinance No.3 of 2015 promulgated by the Governor of Gujarat as ultra vires Article 243E and Article 243U(3) of the Constitution of India. The petitioners have also prayed to issue appropriate writ of mandamus, directing the State Page 2 of 89 HC-NIC Page 2 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Election Commission to declare the date of holding elections of Panchayats in the State of Gujarat forthwith in due compliance of the constitutional obligation flowing from Article 243E of the Constitution of India read with the provisions of Section 13 of the Gujarat Panchayats Act (hereinafter referred to as the "Act" for short).
2.In order to appreciate the controversy, we may refer to certain factual aspects as coming out from the record of the present case.
3.The last elections of 24 District Panchayats and 208 Taluka Panchayats were held in the year 2010 and the results were declared on 23rd November, 2010. The first meeting of the respective Panchayats were held from different dates, but more or less, they were in November 2010. Resultantly, as per the provisions of Section 13 of the Act read with the provisions of Article 243E, the term of the elected body would be for five years and such period of various Panchayats are to end in November 2015. As per the petitioners, the last Assembly Session in the Page 3 of 89 HC-NIC Page 3 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT State was from 26.8.2015 to 28.8.2015 and such session was held, but no amendment was suggested to Section 15 of the Act. Thereafter, on 14th September, 2015, the Ordinance has been promulgated being Gujarat Ordinance No.2 of 2015, wherein Section 15 of the Act has been substituted, which, as per the petitioners, is unconstitutional and ultra vires the Article 243 of the Constitution of India. It further appears that on 3.10.2015, there were two events simultaneously; one was the Ordinance No.3 of 2015 promulgated, whereby Section 7A of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "GPMC Act"), Section 8A of Gujarat Municipalities Act, 1963 (hereinafter referred to as "Municipalities Act") and Section 257 of the Gujarat Panchayats Act, 1993 (for short "Act") have been substituted. Simultaneously, on the very day i.e. on 3rd October, 2015, State Election Commission - respondent No.2 issued a Press Note, communicating that the elections of six (6) Municipal Corporations, 53 Municipalities, three (3) newly constituted Municipalities, 23 Taluka Page 4 of 89 HC-NIC Page 4 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Panchayats and 31 District Panchayats were to be held in October/November, 2015, since their terms were to expire. However, considering the span of the elections to be held, the State Election Commission had assessed the condition of law and order and the requirement of law for holding the elections and after detailed consideration, it was decided not to hold the elections at present of the local authorities and to reassess the convenient position for holding the election and then to hold the election within next three months. Under these circumstances, the present petition.
4.We may record that on 9.10.2015 when this petition came to be considered by this Court for the first time, following the order was passed :-
"1.Draft amendment is granted.
2.Prima facie we would have recorded the reasons for considering the importance of the matter since there is a constitutional mandate to hold election of Panchayats before the expiry of the term. We would have further recorded the reasons.
3.However, the learned Advocate General, appearing upon advance copy for the State, prays that some time may be granted to file reply and the petitioner, if wants to file rejoinder, may also file.Page 5 of 89
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4.It has been stated that the outer limit of expiry of the term is first and second week of November 2015.
5.Under these circumstances, Notice returnable on 14.10.2015.
6.The learned Advocate General states that the State will file reply by 12.10.2015 and serve copies to the petitioners as well as the State Election Commission. The Election Commission, if desirous to file reply, may file reply on 12.10.2015. The petitioners, if desirous to file rejoinder, may file rejoinder by 13.10.2015.
7.As the notice is made returnable on 14.10.2015, the matter will be heard further on 14.10.2014. Direct service today is permitted."
5.Thereafter, respondent No.2 as well as respondent No.1 has filed their replies. In the reply of respondent No.2, it has been contended, inter alia, that looking to the situation, as narrated in paragraph 7, of serious threats to the safety and security of the voters and the election officers, respondent No.2 had addressed the communication dated 3.9.2015 and 30.10.2015 for deployment of adequate Police, Paramilitary and State Reserved Force and to intimate the respondents about the steps taken to ensure free and fair elections of the local bodies. As per respondent No.2, the Additional Chief Secretary Page 6 of 89 HC-NIC Page 6 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT (Home) of the State Government replied to respondent No.2, informing various circumstances, which shall be referred to hereinafter appropriately. Thereafter, the Ordinance No.3 of 2015 was promulgated and Section 257 of the Act was substituted, which provides for the circumstances as were otherwise found permissible by the Supreme Court and it has been held that the Election Commission is the ultimate and the best judge to decide as to whether or not it is possible and expedient to hold the election. The legal contentions are raised, which shall be dealt with hereinafter. Further, affidavit-in- reply at paragraph 13, it has been stated that newly amended Section 257 of the Act only reiterate of what is already permissible in law that it is always open to the respondent No.2 to take decision of postponing elections if there is a natural calamity or breakdown of law and order or rioting. As per respondent No.2, the prevailing law and order situation is not conducive for free and fair election and the same is likely to lead escalation of violence causing threat to safety and security of voters. It Page 7 of 89 HC-NIC Page 7 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT refers to the meeting of the Election Commission dated 3.10.2015 and the press note issued by the Election Commission is justified on account of the situation prevailing in the State. It is further stated that the situation prevailing in the State even now as extremely volatile and considering the inability of the State Government to provide adequate security cover, it is practically impossible to hold elections of the local bodies at present. There is reference to the ensuing festivals and the holding of the meeting on 12.10.2015 and it has been contended that the decision has been taken to defer the election of the local bodies after due consideration and, therefore, there is no illegality or irrationality or arbitrariness in the decision making process of respondent No.2.
6.In the affidavit-in-reply filed on behalf of the respondent No.1 State, it has been contended, inter alia, that no new provision has been introduced. The provisions of the Panchayats Act are made at par with the GPMC Act and the Municipalities Act. So far as the amendment in Page 8 of 89 HC-NIC Page 8 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act are concerned, it has been stated that if a voter is not allowed to cast his vote in freely and frankly to elect a candidate of his choice, then in that case, it cannot be said to be a free and fair election and, therefore, in that background provisions have been incorporated in the legislature by inserting the term "frankly and freely". It has been contended that when it appears that the performance of the formalities prescribed by a statute backed by the Constitution is rendered impossible by the circumstances over which the State Government has no control it becomes an exceptional circumstances, which could distract the authorities from holding the election to the local bodies and precisely such eventuality has occurred in the present case. There are various circumstances referred to as also been referred by the Election Commission, but in substance, it is for justifying and maintaining the Ordinance with the further contention that right after insertion of Part IX and IX-A of the Constitution Page 9 of 89 HC-NIC Page 9 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT in the year 1993 relating to the appointment of administrator to manage the affairs of a local body when timely election thereto was not possible due to certain unforeseen circumstances, were very much there on the statute book. It has been further contended that there is no unconstitutionality by both the Ordinances. It has been stated that after 1993 the power to appoint the Administrator remained on the statute book and continued without there being any challenge until they came to be amended and the Court would not like to judicially review the decision.
7.We have heard Mr.Shaktisinh Gohil, learned Advocate for the petitioners, Mr.Kamal Trivedi, learned Advocate General appearing with Mr.P.K. Jani, learned Additional Advocate General and Ms. Sangeeta Vishen, learned AGP for the State of Gujarat and Mr.Mihir Thakore, learned Sr. Advocate appearing with Ms.Amrita Thakore, learned Advocate for respondent No.2 for final disposal of the petition.
8.We may first consider the question of Page 10 of 89 HC-NIC Page 10 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT constitutional validity of both the Ordinances and thereafter we will address ourselves to the action taken by the State Election Commission for postponement of the election of the local bodies.
9.However, before we consider the question constitutional validity of both the Ordinances, it would be useful to refer to the constitutional provisions, the provisions of the Act, the provisions, the provisions of GPMC Act and Municipalities Act existed prior to the Ordinances and exist after amendment by Ordinance No.2 of 2015.
10.By 73rd amendment, Part IX under the head of "Panchayats" has been inserted into the constitution. The relevant Articles are Articles 243E, 243K, 243N read as under:-
"243E. Duration of Panchayats, etc. --(1) Every Panchayat, 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.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).Page 11 of 89
HC-NIC Page 11 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT (3) An election to constitute a Panchayat 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 Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period. (4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved."
"243K. Elections to the Panchayats. --The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, Page 12 of 89 HC-NIC Page 12 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats."
"243N. Continuance of existing laws and Panchayats. --
Notwithstanding anything in this Part, any provision of any law relating to Panchayats in force in a State immediately before commencement of the Constitution (Seventy third Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement whichever is earlier: Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State."
11.Article 243E(1) of the Constitution provides that the term of every Panchayat unless dissolved under any other law for the time being in force shall be for five years from the date appointed for its first meeting and no longer. Article Page 13 of 89 HC-NIC Page 13 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT 243E provides that the election to constitute a Panchayat shall be completed before the expiry of its duration specified in Clause (1), meaning thereby before expiry of term of five years, the election of a Panchayat must be held. Article 243K provides that the power to hold election of the Panchayat shall be vested in the State Election Commission to be appointed by the Governor. The conditions of service and tenure of the State Election Commission shall be as per the provisions of the law made by the State Legislature, but with the further proviso that the Election Commission shall not be removed from his office, except in a like manner and on the like ground as a Judge of a High Court and the conditions of service shall not be violated to his disadvantage after his appointment. Sub- Article (4) of Article 243K provides subject to the provisions of Constitution, the legislature of State may, by law, make provision with respect to all the matters relating to or in connection with the elections to the Panchayats, meaning thereby the State legislature can make law, on the subject otherwise than provided under the Page 14 of 89 HC-NIC Page 14 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Constitution. Article 243N provides for a non- abstain clause to nullify any provision of any law made relating to Panchayats by the State Legislature inconsistent with the provisions of this part of the Constitution after expiry of the period of one year from the date of its commencement. It may be recorded that 73rd amendment has come into force from 24.4.1993 and after 23rd April, 1994 any provisions of law made by the State Legislature in view of the Article 243N of the Act, which are inconsistent with the Part IX of the Constitution are made inoperative and nullified.
12.We will consider Part IX-A also when we consider the matter for Ordinance 3 of 2015, but since Ordinance No.2 of 2015 is for Panchayat Act, the same is not referred to at this stage.
13.Section 15(1) of the Act, which existed prior to promulgation of Ordinance i.e. September 14 of 2015 was as under:-
"15. Election. (1) The election of members to a Panchayat shall be held on such date as State Election Commission may appoint in that behalf, Page 15 of 89 HC-NIC Page 15 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Provided that -
(i) in the case of reconstitution of a Panchayat on account of the expiry of its duration of five years such date shall not be earlier than two months or later than fifteen days before the expiry of the duration.
(ii) In the case of reconstitution of a Panchayat on account of dissolution of a Panchayat where the remainder of the period for which the dissolved Panchayat would be continued is six months or more than six months such date shall not be later than two months after the date of dissolution of the panchayat.
(iii) In the case of reconstitution of a panchayat on account of dissolution of a panchayat where the remainder of the period for which the dissolved panchayat would have continued is less than six months, such date shall not be earlier than two months or later than fifteen days before the expiry of such lesser period, except with the sanction of the State Government which may be given either prospectively or retrospectively."
14.The aforesaid Section 15 provided a mandate to the State Election Commission that the election of the Panchayats shall be held by the State Election Commission on such date as may be fixed in that behalf, but it further provided that the constitution of Panchayats on account of the expiry of its term of five years shall not be earlier than two months or later than 15 days before the expiry of its duration. The aforesaid Page 16 of 89 HC-NIC Page 16 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT two limits were provided of not earlier than two months and not later than 15 days for the purpose of reconstitution. Such provisions were made in order to ensure that at least before 15 days prior to the expiry of the duration of the term of the Panchayats new Panchayat shall be reconstituted and the State Election Commission shall hold the election accordingly.
15.The aforesaid Section 15(1) is substituted by the Ordinance No.2 of 2015, which reads as under:-
"Subsection (1) Subject to the provisions of Section 43, the election of members to Panchayats shall be held on such date as State Election Commission may appoint in that behalf."
16.Since there is reference to Section 13 of the Act, the same is reproduced as under:-
"Section 13. Duration of Panchayats and their reconstitution. (1) Every panchayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its first meeting and no longer.
(2) An election to constitute a panchayat shall be completed
(a) before the expiry of its duration Page 17 of 89 HC-NIC Page 17 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT specified a subsection (1);
(b) before the exploration of a period of six months from the date of its dissolution;
Provided that where the remainder of the period for which the dissolved panchayat would have continued is less than six months, it shall not be necessary to hold any election under this subsection for constituting the panchayat for such period. (3) A panchayat constituted upon the dissolution of a panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved panchayat would have continued under subsection (1) had it not been so dissolved."
17.The conjoint reading of Section 15(1) prevailing then with the amended provisions of Section 15(1) with Section 13 of the Act shows that in earlier provision prior to the amendment by the Ordinance the outer limit for constitution of the Panchayat was mandated by the legislature namely, not earlier than two months or not later than 15 days prior to the expiry of the duration of five years, whereas by amended Section 15(1), such mandate is done away. Further, if Sub-section (1) of Section 15 prevailing then is considered with the proviso (i) as prevailing then, it provided for both the cases, one for holding election of the members of the Panchayat and for Page 18 of 89 HC-NIC Page 18 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT reconstitution of the Panchayat. It is hardly required to be stated that the election of the members of the Panchayat is one thing, whereas reconstitution of the Panchayat is another thing. The mandate under Section 13(2) is for reconstitution of the Panchayat. Therefore, the mandate as was prescribed earlier by the State Legislature under Section 15(1) read with proviso
(i) is done away and the Election Commission is clothed with the power to fix the date of the election, subject to provisions of Section 13 of the Act.
18.The attempt was made by the learned Advocate General to contend that there is no new thing brought about and only Section 15 is amended with the control of power under Section 13 with the State Election Commission and, therefore, it cannot be said that the Election is proposed to be deferred by amending Section 15(1).
19.There are two aspects of the matter; one is that holding of the elections of the Panchayats cannot be fully equated with the elections of the members of the Corporations and the obvious Page 19 of 89 HC-NIC Page 19 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT reason is that the number of Corporations and the number of Municipalities would be much less in comparison to the number of Taluka Panchayat and the District Panchayats, whose elections are to be held by the State Election Commission. In the Press Note of the State Election Commission at Annexure-D, the said aspect is apparent. The Election Commission had to hold elections of 230 Taluka Panchayats and 31 District Panchayats as against the elections of six Corporations and 53 plus 3, total 56 Municipalities. The work can be said as about three times of elections of the Panchayats in comparison to elections of Corporations and Municipalities. Further, the Panchayat elections are in three-tier; one for the Gram Panchayat, second for Taluka Panchayat and the third for District Panchayat. Therefore, considering the huge span of work, the legislature had thought it proper, prior to the amendment of Section 15(1), to ensure that the elections are held of the members of the Panchayats in a manner resulting into reconstitution of the Panchayats not earlier than two months, but at the same time not later than Page 20 of 89 HC-NIC Page 20 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT 15 days from the expiry of its term. In our view, had the amendment not been made and Section 15(1) of the Act continued on the statute book the State Election Commission possibly was mandated by the State Legislature to initiate the process of election well in time, but the same has been done away by the amendment made by the Ordinance. It is true that Section 15(1) (amended) provides for holding of the election on the date, as may be fixed by the State Election Commission but subject to the provisions of Section 13 of the Act. Therefore, one can say that the mandate of holding of election prior to the expiry as per Section 13 read with Article 243E is not diluted, but if one compares Section 15(1) as prevailing then with the proviso with the amended Section 15(1), it can be said that the provisions were existed on the statute book in order to ensure timely election of large number of Panchayats in the whole of the State is diluted and could also be said as if not against the express provisions of Article 243E, but against the spirit of timely election as mandated by the constitution under Article 243E of the Page 21 of 89 HC-NIC Page 21 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Constitution.
20.It is well settled that the Court may first make an attempt to interpret the provisions in order to maintain the constitutionality of different sections of the statute and if something is lacking in a statute, Court may read down the statute so as to maintain the spirit of the Constitution and if such is not possible, only option left with the Court, if found against the Constitution, is to declare the said statute as unconstitutional.
21.Examining the matter further, it can be said that since the mandate of the constitution under Article 243E(3) is to hold the election before the expiry of the term of five years, it would be required for the State Election Commission even after amendment, under Section 15(1) to ensure that the process for holding of election of the members of the Panchayats is initiated at least 45 days in advance prior to the expiry of the statutory term of five years of respective Panchayats. We are inclined to take such view because of the two reasons; one is that as per Page 22 of 89 HC-NIC Page 22 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Rule 9 of the Gujarat Panchayat Election Rules, 1994, minimum span from the date of Notification until the result is declared is for 21 days. Further, as per Rule 3 of the Gujarat Taluka and District Panchayats President and Vice-President Election Rules, six days clear notice is required for holding of the first meeting and the Panchayat as per Section 63 and 77 of the Act. As per Section 63(4) for the first meeting of Taluka Panchayat and Section 77 for the first meeting of District Panchayat and even for Village Panchayat for the first meeting under Section 51(4), the outer limit for the first meeting is four weeks from the publication of the result of the members of the Panchayat. As observed earlier, 21 days is minimum span for various stages of election after the election is declared and four weeks are for the convening of first meeting. Accordingly, at least the Election Commission must initiate the process of election by publication of election programme, 45 days in advance. Then only minimum time gap as provided under the above referred Rules can be maintained and the Panchayats can be Page 23 of 89 HC-NIC Page 23 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT reconstituted as mandated by Article 243E(3) of Constitution. It would not be out of place to mention that though Section 15(1) is amended, but there is no simultaneous amendment in the Rules. Therefore, while operating section Rule also will have to be respected and followed. Hence, we are inclined to read down section 15(1) (amended) in a manner that the State Election Commission, should and must at least begin with the publication of the election programme prior to 45 days from the expiry of the term of the Panchayats. If there is any failure on the part of the Election Commission to initiate the process of election of the Panchayats as observed earlier, any citizen aggrieved by the said inaction of the Election Commission should be at liberty to approach this Court under Article 226 of the Constitution of India. In our view if amended Section 15(1) is read down accordingly, then only, in reality, the spirit and the mandate of Article 243E(3) of the constitution of completing the election and reconstitution of the Panchayats prior to the expiry of the term of five years shall be maintained. If section is Page 24 of 89 HC-NIC Page 24 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT not read down accordingly and is left to the State Election Commission to decide it, such would not only lead unguided and arbitrary power to the Election Commission, but would also leave room for the Election Commission to fix up the dates of election, which may result into breach of the statutory rules. Under those circumstances, amended Section 15(1) can be rendered unconstitutional.
22.Before parting with, we may usefully refer to the observations made by this Court in the case of Gujarat Pradesh Panchayat Parishad Vs. State Election Commission, reported at 2005(o) GLHEL- HC 215812 at paragraph 27, it was observed thus:
27. On perusal of the various provisions in Part IX and IXA of the Constitution, it is clear that the Constitution has cast an obligation to complete elections to Panchayats and the Municipalities before expiry of the duration of five years from the date appointed for the first meeting.
All the provisions in Part IX in relation to panchayats are required to be read harmoniously. There can be no manner of doubt that all the authorities concerned with the determination of number of seats in panchayats and similarly the authorities determining the number of seats to be reserved for Scheduled Castes, Scheduled Tribes and women and the authorities for delimiting the wards as well as the authorities entrusted with the task of Page 25 of 89 HC-NIC Page 25 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT revision of electoral rolls are required to keep in mind the mandate enshrined in Article 243E(3) of the Constitution. While the Constitution specifically vests the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to panchayats and municipalities in the State Election Commission, it does not at all mean that the other authorities who are entrusted with the task of taking any preliminary steps prior to the Election Commission swinging into action, are not to obey the mandate contained in Article 243E(3) and 243U(3) of the Constitution. The Constitution does not intend, and could not have intended, that if any authorities other than the State Election Commission are not vigilant in the timely performance of their functions, then the State Election Commission must watch the scene as a mute and helpless spectator and cannot swing into action till the other authorities choose to issue necessary notifications as preliminary steps before the State Election Commission can commence the election process. Since the time limits stipulated in the provisions of Article 243E(3) and 243U(3) are both mandatory and peremptory, the State Election Commission must start taking all the necessary steps and the heavy responsibility cast on the shoulders of the State Election Commission even requires the Commission to request, remind, caution and alert the State Government and other authorities for taking timely action to see that all the preliminary steps are taken with utmost expedition so that the State Election Commission can then commence election process within the time limit stipulated in the constitutional provisions and also in the statutory provisions like Section 15 of the Panchayats Act. (Emphasis supplied)
23.Hence, the said aspect for constitutional Page 26 of 89 HC-NIC Page 26 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT validity of Ordinance No.2 of 2015 would stand concluded accordingly.
24.As relevant Articles of the Constitution under Part IX-A are already reproduced earlier, we need not repeat the same, but as the amendment brought about by the Ordinance No.3 of 2015, is also pertaining to the municipal corporations and municipalities, Part IX-A inserted simultaneously by 74th constitutional amendment together with 73rd constitutional amendment will be required to be considered. 74th amendment is brought into force on 1.6.1993. Part IX-A under the heading of the Municipalities provides for Article 243U, 243ZA and 243ZF, which may be required to be considered. The same for ready reference reads as under:-
"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 Page 27 of 89 HC-NIC Page 27 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT 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 have continued under clause (1) had it not been so dissolved."
"243ZA. 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 the State Election Commission referred to in article 243K.
(2) Subject to provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities."
"243ZF. Continuance of existing laws and Municipalities.--Page 28 of 89
HC-NIC Page 28 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventyfourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:
Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State."
25.The aforesaid shall now take us to examine the constitutional validity of Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act brought about by Ordinance No.3 of 2015. In order to appreciate the contention the comparative table would be of help, the same is reproduced as under:-
Sr. Original Provisions Amended Provisions No. As per Ordinance No.3 of 2015 Page 29 of 89 HC-NIC Page 29 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT
1. The Bombay Provincial The Bombay Provincial Municipal Corporations Municipal Corporations Act, 1949. Act, 1949 Section 7A: Section 7A:
"(1) Where, -
"(1) Where it is not
(I) the duration of a possible to hold the
Corporation has already election to constitute a
expired or is due to Corporation on account of
expire during the unforeseen circumstances
transitory period as such as natural calamity,
referred to in sub- riots, disturbances or on
section (1) of section account of an apprehension
6C and election to that voters will not be
constitute the allowed to vote frankly
Corporation could not be and freely, then,
completed before the notwithstanding anything
expiry of its duration, contained in this Act,
or the State Government may,
by an order published in
(ii) due to unforeseen the Official Gazette,
circumstances such as appoint an officer as an
natural calamity, riots, Administrator to manage
communal disturbances, the affairs of the
the election to Corporation during the
constitute Corporation period from the date
could not be completed specified in the order
before the expiry of its upto the date immediately
duration, preceding the date of the
first meeting after the
the State general election"
Government may, by order
published in the
Official Gazette appoint
a person as an
Administrator to manage
the affairs of the
Corporation during the
period from the date
specified in the order
upto the date
immediately preceding
the date of first
meeting, after general
election."
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2. The Gujarat The Gujarat
Municipalities Act, Municipalities Act,
1963 1963
Section 8A: Section 8A:
"Where it is not "(1) Where it is not
possible to hold the possible to hold the
election to constitute election to constitute a
a municipality as municipality on account
provided in section 8 of unforeseen
of the Act on account circumstances such as
of unforeseen natural calamity, riots,
circumstances such as disturbances or account
natural calamity, of an apprehension that
riots, communal voters will not be
disturbances, all allowed to vote frankly
powers and duties of and freely, then,
the municipality shall notwithstanding anything
be exercised and contained in this Act,
performed by such the State Government
officer as the State may, by an order
Government may, by published in the
order, appoint from Official Gazette,
time to time in this appoint an officer as an
behalf." Administrator to manage
the affairs of the
municipality.
(2) All powers and
duties of the
municipality shall be
exercised and performed
by the Administrator
appointed under sub-
section (1) during the
period from the date
specified in the order
upto the date
immediately preceding
the date of the first
meeting after the
general election."
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3. The Gujarat Panchayats The Gujarat Panchayat
Act, 1993 Act, 1993.
Section 257: Section 257:
"(1) Where in respect "(1) Where it is not
of a panchayat which is possible to hold the
to be reconstituted on election to constitute a
account of the expiry panchayat on account of
of its duration, the unforeseen
State Government is circumstances such as
satisfied that, it is natural calamity,
not possible to hold riots, disturbances or
elections before the on account of an
expiry of duration for apprehension that
reconstituting the voters will not be
panchayat, on account allowed to vote frankly
of any natural and freely, then,
calamity, then, notwithstanding anything
notwithstanding contained in this Act,
anything contained in the State Government
this Act or rules made may, by an order
thereunder, the State published in the
Government may by Official Gazette,
notification in the appoint an officer as an
official Gazette make a Administrator to manage
declaration to that the affairs of the
effect. panchayat.
* * * * * * * * (2) All powers and
duties of the panchayat
shall be exercised and
(3) On the issue of the performed by the
notification under sub- Administrator appoint
section (1), all the under sub-section (1)
powers and duties of the during the period from
panchayat shall be the date specified in
exercised and performed
the order upto the date
for the period during
which the notification immediately preceding
remains in force by such the date of the first
officer as the State meeting after the
Government may by order general election."
in writing specify."
26.As such, Article 243U is having the same
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language at par with the above referred Article 243E for the duration of Panchayats, which under Article 243U is for Municipalities. As per Article 243U, the term of the Municipalities is for five years from its first meeting and no longer. Sub-article (3) of Article 243U provides for mandate to complete the election before the expiry of its duration of five years. Article 243ZA provides that the State Election Commission shall be vested with the power to hold the elections of various stages of elections of the municipalities and Sub-article (2) of Article 243ZA provides that subject to the constitution State Legislature may make law relating to or in connection with the elections to the municipalities. Article 243ZF provides non-
abstain clause that any law made by the State Legislature inconsistent with this part shall stand nullified after the expiry of the period of one year from the commencement of the amendment in the constitution. To say in other words, after 31.5.1994, any law made by the State Legislature inconsistent with the provisions of this Act shall be inoperative.
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27.After having considered the above referred constitutional provisions, we may consider the comparative chart for Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act as prevailing then and as amended as per the Ordinance No.3 of 2015.
28.Conjoint reading of un-amended provisions and amended provision shows that in addition to the earlier words such as "natural calamity, riots, communal disturbances", under Section Section 7A of the GPMC Act, Section 8A of Municipalities Act, following words are added:-
"or on account of an apprehension that voters will not be allowed to vote frankly and freely."
35.In Section 257 of the Act, in place of the words "natural calamity, riots, communal disturbances", words substituted and added are:
"unforeseen circumstances such as natural calamity, riots, disturbances or on account of apprehension that the voters will not be allowed to vote frankly and freely."
36.It was contended on behalf of the petitioners that by addition of the aforesaid words, by substitution of Section 7A of the GPMC Act, Page 34 of 89 HC-NIC Page 34 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Section 8A of Municipalities Act and Section 257 of the Act, the State Legislature has made the provisions against the mandate of the constitution of holding the election and reconstitution of the corporations, municipalities or Panchayats, as the case may be prior to the expiry of the term of five years. It was submitted that the scope for appointment of the administrator is not only expounded, but a leave way or a room is given to the State Election Commission to postpone election on such ground by statutory recognition of the circumstances in contravention to the express provisions and spirit of the constitution. It was also submitted that there are catena of decisions interpreting the provisions of Article 243E and Section 243U of the constitution observing that holding of elections prior to the reconstitution of the Panchayats or the municipalities or the Municipal corporation is mandatory and it is obligatory for the State Election Commission to take timely steps for initiation of the process of election and completion thereof, so that the elected body is Page 35 of 89 HC-NIC Page 35 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT substituted by the newly elected body by way of reconstitution and no room is left for appointment of administrator, which is not provided under the constitution. The learned Advocate for the petitioners has relied upon the decisions, which shall be considered appropriately to the extent they found relevant.
37.Whereas, the learned Advocate General for the State submitted that no new thing is added by the State Legislature than observed by the Apex Court in its decision in the case of Kishansingh Tomar Vs. Municipal Corporation of City of Ahmedabad and Ors., reported in (2006) 8 SCC, 352. It was also submitted that the conduct of election in free and fair manner is the whole mark of the constitution and, therefore, if the voters are not allowed to vote frankly and freely, there will not be any free and fair election and, therefore, such circumstances are considered and embodied in the statutory provisions. It was also submitted that in order to see that there is no vacuum and hiatus on account of non-holding of election it has been provided for appointment of Page 36 of 89 HC-NIC Page 36 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT administrator, which was also in existence in the statute book prior to the amendment brought about in the respective section by Ordinance No.3 of 2015. The learned Advocate General submitted that there is no un-constitutionality of the amendment made by Ordinance No.3 of 2015 as sought to be canvassed on behalf of the petitioners. In his submission, the amended provisions of the respective Act are not suffering from any vires, nor does it, in any manner, adversely affect the spirit of the constitution. He, therefore, submitted that the challenge be negated. The learned Advocate General also relied upon certain decisions which shall be referred to by us hereinafter to the extent found relevant.
38.On behalf of respondent No.2 State Election Commission in the affidavit-in-reply at paragraph 25, it has been stated as under:-
"I state and submit that the newly amended provisions merely circumscribe the situations in which elections can be postponed. I reiterate that this is even otherwise the position in law as laid down by the Honourable Supreme Court. I deny that any of the contents of the newly amended provisions are in breach of or Page 37 of 89 HC-NIC Page 37 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT violation of the constitution or give unfettered or uncanalised power to the State Government based on its sweet will or desire for nonholding of election or that non holding of the election would be at the whim and mercy of the State Government. I deny that newly amended provisions are discriminatory or arbitrary or violative of any of the provisions of the Constitution or smack of colourable exercise of power."
39.Before we further examine the matter, we may make useful reference of certain case laws. In the decision of the Apex Court in the case of Presidential reference No.1 of 74 reported at (1974) 2 SCC 33, it was observed that while examining as to "...whether the provision is directory or mandatory, it is the duty of the courts to get at the real intention of the legislature by carefully attending the whole scope of the provision to be construed". In the very decision, it was observed that "...The necessity for completing the election before the expiration of the term is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralyzed by noncompliance with the provision that there shall be a President of India". On the aspect of impossibility of completion of Page 38 of 89 HC-NIC Page 38 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT election, it was observed that the law does not compel one to do that which one cannot possibly perform and it was further observed that the impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God.
40.In the case of Rasikchandra Devshanker Acharya & Ors. Vs. State of Gujarat & Ors., reported in 1995 (1) GLR 36 (equivalent to 1994 (2) GLH
573), the State Legislature had come out with the legislation/act for postponement of the election of local bodies namely, Gujarat Local Authorities (Temporary Postponement of Election) Act, 1994 and the validity of the said enactment was challenged as ultra vires the constitution and more particularly Part IX and IX-A of the Constitution. This Court had an occasion to consider the scheme of the provisions of Part-IX Page 39 of 89 HC-NIC Page 39 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT and IX-A of Constitution, it was observed at paragraphs 42 to 44, which reads as under:-
42. There is also considerable force in the contention of Shri Girish Patel that in so far as the impugned Act postpones the revision of the Electoral Rolls till after 411995, the same is violative of Article 243K and Article 243ZA of the Constitution.
According to the said Articles the superintendence, direction and control of the preparation of the electoral rolls is also vested in the State Election Commission. The rolls have to be revised in accordance with law. The law has to provide as to who are entitled to vote and what will be the basis of the electoral rolls. In the instant case, the electoral rolls of the State Assemblies, for the time being in force, as updated and revised by the Election Commission are to be prepared. That is the requirement of the BPMC Act and the Panchayats Act. But the laws do not state as to when preparation of the rolls are to take place. That is the function and responsibility of the Election Commission. It is for him to lay down the programme for revision of rolls. By the impugned Act, this power of the Election Commission has been curtailed. By enlarging the definition of the word "election" to include even the preparation of the electoral rolls and by providing in 3 that the election Section process shall not start until after 411995 the Election Commission has been prohibited to revise or prepare the rolls before that date even if he wants to do so. In fact, it was contended before us on behalf of the Commission that before 411995 because of the impugned Act, the State Election Commission cannot take any step towards the conduct of the elections, including the revisions of the electoral rolls. To our mind, this clearly impignes on the Commission's power to prepare the electoral Page 40 of 89 HC-NIC Page 40 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT rolls and is violative of and Article 243K Article 243ZA.
43. Being the largest democracy in the world, it was paradoxical that there was no Constitutional sanction or protection to the democratic institutions at the grassroot level represented by Panchayats, Municipalities and Municipal Corporations. Whenever any structure is erected the foundations which bear the most weight, have to be the strongest. Democracy is also a basic structure of our Constitution and for it to survive the democratic institutions at the grassroot level have to be permanent and strongest. Democracy must become a way of life in which the people participate in the constitution and establishment of democratic institutions. Though such institutions have been in existence in most of the States, including Gujarat, they were seldom allowed to become strong or take root. The following passage from the speech of the Minister of State in the Ministry of Rural Development while moving the Seventy Third Amendment Bill in the Parliament, clearly brings out the state of health of existing Panchayats and the need to give Constitutional protection. It was, inter alia, said by the Minister that:
"...However, barring these exceptions, in most other States, the record as far as Panchayati Raj Institutions is concerned, has not been very good. On the other hand, attempts have been made in many of the States to weaken the existing Panchayati Raj Structure by imposing other nominated bodies at the same level. Elections have been irregular and many times unnecessarily delayed or postponed. Elected bodies have been superseded or suspended without adequate justification at the whims and fancies of the Government and Government authorities. Even where these Institutions function, they came to be dominated by economically and socially privileged Page 41 of 89 HC-NIC Page 41 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT sections of the rural societies and were utilised to serve the class and sectoral interests of the entrenched vested interests.
It has, therefore, been felt that a Constitutional sanction is as indispensable to democracy at the grassroot level as it is to democracy at the State level or national level. Thus we intend to inscribe in the Constitution certain core elements of grassroot democracy to take them beyond the pale of changing political expediency.... "
(Emphasis added) The aforesaid malady exists in Gujarat also. Five out of six Corporations have not had elections when due and are headed by bureaucrate nominated by the Government. By 31121994, nearly 6175 out of total number of 13,363, village Panchayats will have Administrators instead of elected members. Similarly, the term of 53 out of 62 Municipalities has come to an end and instead of holding elections the Government have appointed Administrators. The tract record of the Government and the manner in which both the major parties in the State Legislature have combined to pass the impugned Act does give rise to the strong belief that the elected representatives at the State level, out of fear of the electorate, have so far been successful in preventing any elections being held at the grassroot level. It was precisely this situation which must have been in the mind of the Minister when he stated in the Parliament that "we intend to inscribe in the Constitution certain core elements of grassroot democracy to take them beyond the pale of changing political expediency...." (emphasis added). The prophecy or fear regarding political expediency has come true in the present instance when the arch rivals, the CongressI and the B.J.P. have Page 42 of 89 HC-NIC Page 42 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT joined hands in the State Legislature and passed the impugned Act. It is in this background, and with a view to preventing such mischief, that Part IX and Part IXA were incorporated in the Constitution. The impugned Act, however, is clearly an attempt to make these Constitutional provisions 'still bom' by postponing the elections and depriving democracy from taking root at the ground level.
44. It will be seen that the provisions of Part IX and Part IXA do not contemplate any hiatus. The elections are required to be regularly held and the only time that an unelected body can exist is when it is superseded. Even then it is incumbent to hold the elections within six months of the supersessions. Whereas under Article 83 and Article 172 the duration of the Parliament and the State Legislatures can be extended due to the Proclamation of Emergency, in the case of Local Authorities no such contingency is contemplated by Part IX or Part IXA of the Constitution and election schedule has to adhere to the provisions of Article 243E and Article 243U of the Constitution. Therefore, any attempt on the part of the Executive or the State Legislature not to hold elections cannot be permitted. The inescapable conclusion, therefore, is that Section 3 of the impugned Act is ultra vires." (Emphasis supplied)
41.In the decision of this Court in the case of Gujarat Pradesh Panchayat Parishad Vs. State Election Commission, reported at 2005(o) GLHEL- HC 215812 at paragraph 27, it was observed thus:
"27. On perusal of the various provisions in Part IX and IXA of the Constitution, it is clear that the Constitution has cast an obligation to complete elections to Panchayats and the Municipalities before Page 43 of 89 HC-NIC Page 43 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT expiry of the duration of five years from the date appointed for the first meeting. All the provisions in Part IX in relation to panchayats are required to be read harmoniously. There can be no manner of doubt that all the authorities concerned with the determination of number of seats in panchayats and similarly the authorities determining the number of seats to be reserved for Scheduled Castes, Scheduled Tribes and women and the authorities for delimiting the wards as well as the authorities entrusted with the task of revision of electoral rolls are required to keep in mind the mandate enshrined in Article 243E(3) of the Constitution. While the Constitution specifically vests the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to panchayats and municipalities in the State Election Commission, it does not at all mean that the other authorities who are entrusted with the task of taking any preliminary steps prior to the Election Commission swinging into action, are not to obey the mandate contained in Article 243E(3) and 243U(3) of the Constitution. The Constitution does not intend, and could not have intended, that if any authorities other than the State Election Commission are not vigilant in the timely performance of their functions, then the State Election Commission must watch the scene as a mute and helpless spectator and cannot swing into action till the other authorities choose to issue necessary notifications as preliminary steps before the State Election Commission can commence the election process. Since the time limits stipulated in the provisions of Article 243E(3) and 243U(3) are both mandatory and peremptory, the State Election Commission must start taking all the necessary steps and the heavy responsibility cast on the shoulders of the State Election Commission even requires the Commission to request, Page 44 of 89 HC-NIC Page 44 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT remind, caution and alert the State Government and other authorities for taking timely action to see that all the preliminary steps are taken with utmost expedition so that the State Election Commission can then commence election process within the time limit stipulated in the constitutional provisions and also in the statutory provisions like Section 15 of the Panchayats Act."
42.In the case of Kishansingh Tomar (supra), when the question arose for examining the action for postponement of the election, it was directed by the Apex Court that the time frame must be strictly followed and election must be completed before the expiry of its term. The State Election Commission on account of the same had proposed the election programme so as to complete the counting by 15.10.2005. However, as the larger issue was involved the matter was referred to the constitutional bench. The constitutional bench of the Apex Court again in its decision in the case of Kishansingh Tomar(supra) had the occasion to examine the scheme of Part IX-A of the Constitution and it was observed at paragraphs 12 and 13 as under:-
"12. It may be noted that Part IXA was inserted in the Constitution by virtue of the Seventy Fourth Amendment Act, 1992. The object of introducing these provisions was Page 45 of 89 HC-NIC Page 45 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT 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. These views were expressed by the then Minister of State for Urban Development while introducing the Constitution Amendment Bill before the 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 :
"In many States, local bodies have become weak and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of selfGovernment. Having regard to these inadequacies, it is considered 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 Page 46 of 89 HC-NIC Page 46 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT
(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.
Accordingly, it has been proposed to add a new Part relating to the Urban Local Bodies in the Constitution to provide for * * *
(f) fixed tenure of 5 years for the Municipality and re election within a period of six months of its dissolution."
13. The effect of Article 243U of the Constitution is to be appreciated in the above background. Under this Article, the duration of the Municipality is fixed for a term of five years and it is stated that every Municipality shall continue for five years from the date appointed for its first meeting and no longer. Clause (3) of Article 243U states that election to constitute a Municipality shall be completed
(a) before the expiry of its duration specified in clause (1), or
(b) before the expiration of a period of six months from the date or its dissolution. Therefore, the constitutional mandate is that election to a Municipality shall be completed before the expiry of the five years' period stipulated in Clause (1) of Article 243U and in case of dissolution, the new body shall be constituted before the expiration of a period of six months and elections have to be conducted in such a manner. A Proviso is added to Subclause (3) Article 243U that in case of dissolution, Page 47 of 89 HC-NIC Page 47 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. It is also specified in Clause (4) of Article 243U that a Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under Clause (1) had it not been so dissolved." (Emphasis supplied) Further, at paragraph 19, it was observed to the extent that the State Election Commission shall not put forward any excuse based on unreasonable ground that the election could not be completed in time. It was also observed that the Election Commission shall complete the election before the expiration of the term of duration of five years as stipulated in Clause 5 and not yield to the situation that may be created by vested interest to postponement of election from being held within the stipulated time limit.
43.In paragraph 21, 22, 27, and 28, it was observed thus:-
"21. It is true that there may be certain manmade calamities, such as rioting or breakdown of law and order, or natural Page 48 of 89 HC-NIC Page 48 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT calamities which could distract the authorities from holding elections to the Municipality, but they are exceptional circumstances and under no circumstance the Election Commission would be justified in delaying the process of election after consulting the State Govt. and other authorities. But that should be an exceptional circumstance and shall not be a regular feature to extend the duration of the Municipality. Going by the provisions contained in Article 243U , it is clear that the period of five years fixed thereunder to constitute the Municipality is mandatory in nature and has to be followed in all respects. It is only when the Municipality is dissolved for any other reason and the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the Municipality for such period.
22. In our opinion, the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new Municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. In this direction, it is necessary for all the State governments to recognize the significance of the State Election Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for the Parliament and State Legislatures. In fact, in the domain of elections to the Panchayats and the Municipal bodies under the Part IX and Part IX A for the conduct of the elections to these bodies they enjoy the same status as Page 49 of 89 HC-NIC Page 49 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT the Election Commission of India.
27. Article 243 K (3) also recognizes the independent status of the State Election Commission. It states that upon a request made in that behalf the Governor shall make available to the State Election Commission "such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). It is accordingly to be noted that in the matter of the conduct of elections, the concerned government shall have to render full assistance and cooperation to the State Election Commission and respect the latter's assessment of the needs in order to ensure that free and fair elections are conducted.
28. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the concerned State Government in discharging its constitutional obligation of holding the elections to the Panchayats or Municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the concerned State Government to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfill the constitutional mandate." (Emphasis supplied)
44.The aforesaid shows that the Apex Court did observed that certain calamities, such as rioting or breakdown of law and order, or natural calamities could distract the authorities from Page 50 of 89 HC-NIC Page 50 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT holding elections to the Municipality, but they are exceptional circumstances and under no other circumstances, the Election Commission would be justified in delaying the process of election after consulting the State Government and other authorities. A word of caution was used that it should be exceptional circumstances and it should not be regular feature to extend the duration of the Municipality. It was also observed that the entire provisions of Constitution was inserted to see that there could not be any delay in constitution of new municipality every five years and in order to avoid mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. It was also observed that the direction of the State Election Commission are binding at par with the direction issued by the Election Commission of India during the elections of Parliament and State Legislature and it was also observed that the domain of elections to the Panchayats and the Municipal bodies under the Part IX and Part IX A for the conduct of the elections to these bodies they Page 51 of 89 HC-NIC Page 51 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT enjoy the same status as the Election Commission of India.
45.The aforesaid shows that in the matter of conducting the election, the State Government shall have to render assistance and cooperation to the State Election Commission also in respect of the assessment for the need in order to ensure that free and fair elections are conducted. It was observed to the extent that if the State Election Commission feels that it was not receiving cooperation from the State Government for discharging its constitutional obligation, it would be open to the State Election Commission to approach the High Court in the first instance and thereafter, the Apex Court for a writ of mandamus or other appropriate writ directing the State Government concerned to proper necessary cooperation and assistance to the State Election Commission to fulfill its constitutional mandate.
46.In the case of Bhanumati and Ors. V. State of U.P., through its Principal Secretary and Ors., report in (2010) 12 SCC, 1 the Apex Court observed for application of doctrine of silence Page 52 of 89 HC-NIC Page 52 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT in the constitutional jurisprudence, but it related to the provisions for no-confidence motion in respect of the office of the Chairperson of the Panchayat. The question as to whether doctrine of silence could be applied as against the express mandatory provisions of the constitution did not come up for consideration before the Apex Court in the said decision.
47.In the case of State of Maharashtra and Ors. Vs. Jalgaon Municipal Council and Ors., reported in (2003) 9 SCC 731, the question arose to deal with the situation of hiatus in the event of transitory period by appointment of administrator. The said case did not relate to the appointment of administrator on account of postponement of the election, but was to deal with the situation of transitory period while conversion into the municipal corporation after the 73rd and 74th Amendments in the Constitution.
48.In the case of T.N. Sheshan, Chief Election Commissioner of India Vs. Union of India and Ors., reported in (1995) 4 SCC, 611, at paragraph 10 it was observed thus:- Page 53 of 89
HC-NIC Page 53 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT "10. The Preamble of our Constitution proclaims that we are a Democratic Republic.
Democracy being the basic feature of our constitutional set up, there can be no two opinion that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitutionmakers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day." (Emphasis supplied)
49.In the case of Election Commission of India Vs. Union of India and Ors., reported in 1995 Suppl. (3) SCC 643, while considering the interim order passed by High Court, at paragraph 8 it was observed thus:-
"8.While we reiterate the judicial perception as to the constitutional position and the plenitude of the powers of the Election Commission as a high and exclusive body charged with the duty, at once sensitive and difficult, of overseeing free and fair elections in the country and that its perceptions of the imperatives for a free and fair elections are not to be interfered with by the courts, we must also indicate that there are no unreviewable discretions under the constitutional Page 54 of 89 HC-NIC Page 54 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT dispensation. The overall constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority is that of the courts. Whether the blanket suspension of the electoral process purported in the order dated 2-8-1993 is justiciable on that principle of judicial review is eminently arguable. But one thing seems clear: the jurisdiction of courts would not to issuing directions to the Election Commission for the conduct of particular polls on particular dates independently of the perception by the Commission as to their feasibility and practicability consistent with what may be needed to ensure the purity of the electoral process. On this aspect we have reservations about the permissibility of the various interlocutory orders of the High Courts which may have the effect and implications of compelling the Election Commission to conduct polls on particular dates and also to follow those events up to their sequential and logical ends. But in the light of the submissions made by Shri Ramaswamy, the it becomes unnecessary to consider these aspects any further at this stage." (Emphasis supplied)
50.In the case of Election Commission of India Vs. State of T.N., and Ors., reported in 1995 Suppl. (3) SCC 379, the Apex Court emphasized on the coordination of the machinery for resolution of the difference mutually between the election commission of India and Union of India.
51.After having considered the above referred case laws, we may now again proceed to consider the Page 55 of 89 HC-NIC Page 55 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT constitutional validity of the amended provisions brought about by Ordinance No.3 of 2015. As per the above referred constitutional provisions read with the decisions of this Court in the case of Rasikchandra Devshanker Acharya & Ors. (supra) read with the decision in the case of Gujarat Panchayat Parishad (supra) read with the decision of the Apex Court in the case of Kishansingh Tomar (supra) it has got to be held that the mandate given under Article 243E read with Article 243U provides for completion to hold the election to constitute the Panchayats or the Municipalities as the case may be before expiry of its duration of five years. The express language used by the constitution is "shall". Further the spirit of giving mandate is reflected from Article 243N read with Article 243ZF, which by constitutional provisions makes in law made by the State Legislature inconsistent with the provisions of the constitution as inoperative, after its expiry of one year from the date on which Part IX and IX-A of the constitution has come into force.
52.It is true that if there are circumstances Page 56 of 89 HC-NIC Page 56 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT beyond the control of the human being like that of act of God, a mandatory provision of any statute or constitution would not result into directory or its effect would not be diluted, but at the same time if the express provision is made by the State Legislature identifying the circumstances for postponement of the election, which otherwise not conceived by the constitution and rather expressly ruled out by the constitution by using the word "shall", the same would result into inconsistent with the constitutional provisions. It is hardly required to be stated that the constitution is supreme and State Legislature cannot travel on the subject not reserved by the Constitution, nor the State Legislature can make any enactment by law which is inconsistent or would run counter to the constitutional provisions. Therefore, in our considered view, the amendment brought about by substitution of Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act is held to be inconsistent with the provisions of Article 243E read with Article 243N for Panchayats and Article 243MU read with Page 57 of 89 HC-NIC Page 57 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Article 243ZF for Municipalities and Municipal Corporations, as the same would suffer from vice of colourable exercise of power being inconsistent with the mandate of the aforesaid constitutional provisions.
53.Further, the aforesaid can be said as for description of the circumstances by the State Legislature against the constitutional provisions for non-holding of the election or for non- constitution of Corporations, Municipalities or the Panchayats, as the case may be.
54.Let us now examine the later portion of Sub- section (1) as well as Sub-section (2) of Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act. The later portion states that the State Government may appoint an officer as administrator to manage the affairs of the Municipal Corporation, Municipalities and or Panchayats, as the case may be by sub-section (2) in the aforesaid all sections, it has been provided that all powers and duties of the corporation or the municipalities or the Panchayats, as the case may Page 58 of 89 HC-NIC Page 58 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT be shall be exercised by the administrator. As we have examined, constitutional scheme of Part IX and IX-A for a term of Panchayats or the Municipalities, as the case may be and the holding of election and reconstitution of the Panchayats or the Municipalities or the Corporation, as the case may be prior to the expiry of its term are mandatory. It is true that by virtue of the language under Article 243E(1) and Article 243U(1) it is stated as five years from the date of first meeting and no longer. At the same time, in the very article it has been provided that the election shall be held before the expiry of the duration specified in sub-article (1). Further, as provided under Article 243N read with the Article 243ZF no law can be made by the State Legislature, inconsistent with the provisions of the Part IX and IX-A of the Constitution. Hence, it can be said that the concept of appointment of administrator is unknown to the constitutional scheme of Part IX and IX-A and the constitutional scheme provides under Part IX and IX-A for elected body of the Panchayats, Municipalities or Page 59 of 89 HC-NIC Page 59 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT the Corporations, as the case may be to be substituted by another elected body of Panchayats or the Municipalities or the Corporations, as the case may be. There is no room at all left for appointment of administrator. Consequently, there would be no room left for performance of the power of the panchayats or the municipalities or the corporations, as the case may be, by such officer, who may be appointed as administrator. It is hardly required to be stated that the appointment of administrator in place of the elected body even otherwise also would be against the spirit of the constitution as reflected from Part-IX and IX-A of the constitution. In the above referred decision of this Court in the case of Rasikchandra Devshanker Acharya & Ors. (supra), in the object and reasons of the constitutional amendment bill were extracted, the same for ready reference are available from paragraphs 9 to 12 as under:-
9. In the Statement of Objects and Reasons of the Constitution Amendment Bill regarding the Panchayati Raj Institutions, it was stated that in the light of the experience in the last forty years and in view of the Page 60 of 89 HC-NIC Page 60 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT shortcomings which had been observed:
"...it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them...."
The main features of the Amendment Bill were mentioned which, inter alia, provided for constitution of the Panchayats at the village and intermediate levels, the duration of the Panchayat and the reservation of seats, etc.
10. In the Statement of Objects and Reasons in the Constitutional Amendment Bill relating to urban local bodies it was, inter alia, stated that:
"In many States local bodies have become weak and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions 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 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 Page 61 of 89 HC-NIC Page 61 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT sharing; (ii) ensuring regular conduct of elections;
(iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representation for me weaker sections like Scheduled Castes, Scheduled Tribes and women."
11. The aforesaid two Bills were then referred to the Joint Committee of two Houses of Parliament in December, 1991. On receipt of the report of the Joint Committee, the Constitution Amendment Bill, as reiterated by the Joint Committee, was again moved in the Lok Sabha by the then Minister of State in the Ministry of Rural Development. While introducing the Bill, the Honourable Minister referred to effort being made by some States for providing wide ranging delegation of powers and authority down to the District and Intermediate level. But it was noted that in the case of most of the States the record as far as Panchayati Raj Institutions were concerned was not very good.
12. A similar statement was made by the Honourable Minister for Urban Development while moving the Constitutional Amendment Bill relating to the urban local bodies. It was, inter alia, stated by the Minister in his speech:
"...Having regard to the present inadequacies and with a view to restore the rightful place in political governance for urban local bodies, it is considered necessary that they should be provided a Constitutional status and necessary provisions made to
(a) ensure regular and fair conduct Page 62 of 89 HC-NIC Page 62 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT of elections; (b) ensure term of five years for elected urban local bodies and election within six months, in cases of supersession;
(c) provide for specific representation for women and the Scheduled Castes and Tribes; (d) provide for devolution of functions and powers to municipalities; and
(e) provide for constitution of State Finance Commission every five years to ensure regular devolution of resources to local bodies.
The Constitution Amendment Bill which is before you for your consideration constitutes but the first stage of a process. Once these Bills are enacted, we must carry this process forward by ensuring appropriate amendments to State legislations and thereafter ensuring effective executive implementation...."
The said Amendment Bills were passed by both the Houses of Parliament and the SeventyThird Amendment came into force from 24th April, 1993 while SeventyFourth Amendment came into force from 1st June, 1993. (Emphasis supplied)
55.The aforesaid read with other observations reproduced earlier of paragraph 43 of the said decision show that one of the major intentions of bringing about the insertion of the Part IX and IX-A of the Constitution was to ensure regular conduct of the election but nowhere in the object clause there is reference to any leave way for Page 63 of 89 HC-NIC Page 63 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT appointment of the administrator on account of the delay in conduct of the election. In the case of Kishansingh Tomar (supra) the Constitutional Bench of the Apex Court, at paragraph 21 even in respect of exceptional circumstances, resulting into the delay of election, it was, inter alia, observed thus:-
"21. It is true that there may be certain manmade calamities, such as rioting or breakdown of law and order, or natural calamities which could distract the authorities from holding elections to the Municipality, but they are exceptional circumstances and under no circumstance the Election Commission would be justified in delaying the process of election after consulting the State Govt. and other authorities. But that should be an exceptional circumstance and shall not be a regular feature to extend the duration of the Municipality. Going by the provisions contained in Article 243U, it is clear that the period of five years fixed thereunder to constitute the Municipality is mandatory in nature and has to be followed in all respects. It is only when the Municipality is dissolved for any other reason and the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the Municipality for such period."
(Emphasis supplied)
56.Apart from the above, even if the principles as Page 64 of 89 HC-NIC Page 64 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT contended by the learned Advocate General are considered for the sake of examination that the constitution is a living organ and the doctrine of silence would apply and that for act of God or the circumstance beyond the control of man or human being, the mandatory provision would not result into directory, then also in light of the above referred observations of the Apex Court in the case of Kishansingh Tomar (supra) and more particularly paragraph 21, which is pressed in service, even by the State, no room would be left for appointment of the administrator, but such circumstances may result into extension of term of the local body, may be Panchayat, may be Municipality or may be Corporation, since it is only on account of the circumstances beyond the control like act of God or for circumstances, on account of which it is impossible to hold election. In any case, reading the power for appointment of the administrator and thereby to capture power by executive fiat, resulting to oust elected body or making any statute for appointment of the administration by the State legislature on account of the delay caused for Page 65 of 89 HC-NIC Page 65 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT holding of election is unknown and not conceived by the constitution and more particularly when Part IX and IX-A mandates with its full spirit to substitute an out-going elected body by incoming new elected body and does not conceive entrustment of such power of elected body to any administrator or any officer, who may be appointed by a law made by the State Legislation. At this stage two aspect need to be recorded. One is that the observation made by this Court in case of Rasikchandra Devshanker Acharya & Ors. (supra) for appointment of administrator would be no more a good law since the Constitution Bench of the Apex Court in case of Kishansingh Tomar (supra) at paragraph 21 expressly observed for extension of the term of the Municipalities if due to exceptional circumstances the election cannot be held. Further doctrine of silence can equally apply for extension of the term of elected body. Secondly, in any case, on the same analogy as canvassed for act of God or riot or natural calamity, the mandatory character of the language used under Article 243E(1) and Article 243U(1) for "No longer" would not be rendered Page 66 of 89 HC-NIC Page 66 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT directory.
57.In view of the aforesaid fact circumstances, we find that the provisions of Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act inserted by Ordinance No.3 of 2015 are unconstitutional and void.
58.The attempt was made by the learned Advocate General to contend that such provisions did exist prior to the substitution by Ordinance No.3 of 2015 under GPMC Act, Municipalities Act and Panchayats Act, but our attention is not drawn on the aspects about the constitutional validity examined of the aforesaid statutory provisions after insertion of Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act as prevailing then.
59. When the Section is substituted the question may arise for revival of Section prevailing then. Even if the question is considered for the sake of examination for revival of the section prevailing then for appointment of administrator on account of the delay or postponement of the election since earlier portion of respective Page 67 of 89 HC-NIC Page 67 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT sections for postponement of election on account of the natural calamities, riots or communal disturbances cannot be conceived by the State Legislature as per the discussion made earlier and as the appointment of administrator or the entrustment of the power to the administrator is unknown, nor conceived by the scheme of Part IX and IX-A of the constitution and the scheme and the mechanism of Part IX and IX-A of the Constitution expressly as well as impliedly provides for entrustment of the power by outgoing elected body to be taken over by newly elected body, we do not find that the question of revival of the old section would hold any merit, nor such can be maintained on the face of Part IX and IX-A of the constitution. Hence, the said discussion would come to an end.
60.We may now consider the question of examining the validity of the action taken by the State Election Commission for postponement of the election.
61.As per the above referred decision of the Apex Court in the case of T.N. Sheshan, Chief Election Page 68 of 89 HC-NIC Page 68 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Commissioner of India (supra) the preamble of constitution proclaims that we are a democratic republic and the democracy being basic feature of constitution set up, there can be no two opinions that free and fair election of legislative body, which would now also include elections of the Panchayats, Municipalities and Corporations alone would guarantee the the growth of healthy democracy in the country. In order to ensure the purity of election process, it was thought by our constitutional maker that the responsibilities of free and fair election in the country should be entrusted to an independent body, which would be insulated from the political and/or executive interference. It is inherent in the democratic set up that the agency which is entrusted the task of election to the legislature should be fully insulated so that it can function as an independent agency free from external pressure from any party in power or executive of the day.
62.With the aforesaid hallmark for the functioning of the Election Commission we need to see the matter further.
Page 69 of 89 HC-NIC Page 69 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT
63.It is by now well settled that the Election Commission is entrusted with the constitutional power to hold election and the power of State Election Commission is now equated at par with the Election Commission of India, who is holding the elections of legislative assembly and the parliament. In the decision of the Apex Court in the case of Kishansingh Tomar (supra), the Apex Court observed a step further that whenever the State Election Commission feels that it is not receiving cooperation from the State Government concerned and discharging constitutional obligation of holding the election to the panchayats and municipalities mandated in the constitution, it would be open to the State Election Commission to approach before the High Court at the first instance and thereafter the Apex Court for a writ of mandamus directing the State Government concerned to extend all necessary cooperation and assistance to the State Election Commission to enable him to fulfill the constitutional mandate.
64.We may record that, during the course of the hearing, after considering the material, prima Page 70 of 89 HC-NIC Page 70 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT facie, when we called upon Mr.Mihir Thakore, learned Sr. Counsel appearing for the State Election Commission to respond as to whether the State Election Commission is ready to hold election forthwith, so as to allow the newly elected body to assume office in place of the outgoing elected body, since such is the spirit of Part IX and IX-A of the Constitution in the election of local bodies, with our direction to the State Government to provide all cooperation and assistance to the State Election Commission to hold timely election, but the response of the learned Counsel representing State Election Commission was in negative. He only reiterated that the prerogative to take decision that whether the election should be held or should be deferred is vested to the State Election Commission and this Court has limited power for judicial review. We may not be understood to mean that it is on account of the aforesaid negative approach to the suggestion of the Court, we are to undertake the exercise of judicial review with the influence thereof, but we find it appropriate to put on record the assertion made Page 71 of 89 HC-NIC Page 71 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT by the State Election Commission to maintain its decision for deferment of elections in spite of the fact that this Court was inclined to direct the State Government to render all cooperation and assistance for the timely election.
65.We may also record that at the conclusion of the hearing, by way of an additional affidavit dated 15.10.2015 it has been declared by the State Election Commission as under:-
"I assure the Hon'ble Court that the elections of local bodies (whose terms are shortly expiring) would be completed latest by 25.12.2015."
66.Thereafter, in the subsequent affidavit dated 16.10.2015, it has been stated in furtherance of the aforesaid assurance as under:-
"I state that the election programmes in respect of elections of all local bodies in Gujarat (whose terms are shortly expiring) would be announced by the respondent No.2 latest by 16.11.2015."
67.At the first brush one may gather that after prima facie view was conveyed by the Court the respondent No.2 has shown willingness to hold election of all local bodies to begin by 16.11.2015 and to complete by 25.12.2015, but if Page 72 of 89 HC-NIC Page 72 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT the schedule for the expiry of the term of all the local bodies in Panchayats, municipalities and municipal corporations are considered, it would not meet with the spirit of the Part IX and IX-A of the constitution for outgoing elected body to be substituted by newly elected body and, therefore, we have further found it proper to examine as to whether the action of the State Election Commission could be said as in conformity with the power so vested to him by the constitution or not.
68.We have considered the record of the original file of the Election Commission, which has been made available for our perusal. On the following circumstances are worth recording:-
(1) As the elections were to be held of District and Taluka Panchayats and Municipalities in October-November 2015 the process was initiated in file by the first noting of August 30, 2015.
Thereafter, on 3.9.2015, the letter is addressed by the Election Commission to the Additional Chief Secretary (Home Department) conveying that the elections are to be held in October/November Page 73 of 89 HC-NIC Page 73 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT 2015 and, therefore, necessary police force be ensured and special police force also be ensured in the sensational area. It was also instructed that the situation be assessed and if required, paramilitary forces or SRP company be also ensured. The time and date of the meeting was to be conveyed later on. The aforesaid letter was addressed on the letter head of the Election Commissioner.
(B) Nothing is done thereafter for about 18 days and process is initiated on 21.9.2015 for holding of the meeting. Vide noting dated 28.9.2015, it was suggested that as per the last election after the declaration of the election programme the meeting may be conveyed. However, on 30.9.2015 noting is recorded about holding of the meeting for ensuring free and fair election. The relevant aspect is that very 4.9.2015 to 21.9.2015 i.e. for a period of about 18 days no action is taken further.
(C) On 30th September, 2015 the letter is shown as addressed by the Election Commission to the Additional Chief Secretary of the Home Department Page 74 of 89 HC-NIC Page 74 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT by the Election Commission but not on the letter head of the Election Commission and the copy of the said letter as available in file is not the copy on the letter head, but copy of plain paper. In the endorsement of outward stamp of Junior Clerk, there are erasures by scratches on the stationery paper.
(D) On 1.10.2015, it is shown that the letter is received from the Additional Chief Secretary of the Home Department to the Election Commissioner regarding the law and order situation in the State and it has been concluded in paragraph 3 and 4 that as per the report there is negative opinion for holding of the election in independent and fair atmosphere. It is also concluded in the said letter that for ensuring the peaceful and cordial atmosphere for election of local bodies and the voters may be in a position to vote in a free and fair manner and for safety of the candidates, it is not possible to provide necessary police force, which may be taken note of.
(E) On the very day i.e. 10.10.2015, the State Page 75 of 89 HC-NIC Page 75 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Election Commissioner is stated to have instructed to convene a meting to review of law and order with the Chief Secretary (SCS), Home, DGP and concerned officers on 3.10.2015 at 1700 hours in committee room.
(F) The meeting is stated as held on 3.10.2015 as per the schedule and eight officers including the Chief Election Commissioner, Chief Secretary of the State Government, Additional Chief Secretary of Home Department had remained present. After deliberation, same thing has conveyed by the letter dated 1.10.2015 and it is reiterated and opined that considering the circumstances if the general elections of local bodies are postponed for three to four months law and order situation would be conducive and during the said period police/CPMF can be procured as per the requirement and thereafter, the Election Commissioner may take decision for holding election. Such opinion was expressed also by the Chief Secretary together with the other officers. (G) During the course of the meeting surprisingly, there is no reference whatsoever of Page 76 of 89 HC-NIC Page 76 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT the Ordinance No.2 of 2015, which has already come into effect for amendment of Section 15(1) of the Act concerning to the elections of the Panchayats from 14th September, 2015. Further also there is no reference or discussion whatsoever to Ordinance No.3 of 2015 bring about for substitution of the provisions of Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act even if the Chief Secretary of State Government participated in the meeting. Proceedings are drawn as if this development, which is vital pertaining to the election in the State is unknown to the Election Commissioner as well as to the Chief Secretary of the State or may be for the reasons best known to them as not disclosed or discussed during the course of the meeting. In any case, meeting concluded, which was scheduled at 5 O'clock. (H) in the evening on the same day copy of the Ordinance dated 3.10.2015 is said to have been received after the meeting and then noting is made on 3.10.2015 to consider the amendment made by the Ordinance.
Page 77 of 89 HC-NIC Page 77 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT (I) On the very day i.e. 3.10.2015 possibly after the meeting was over and the proceedings were drawn of the meeting, the State Election Commission has approved the proceedings and observed that the legal opinion may be sought in view of the Ordinance and various decisions of the High Court and Supreme Court.
(J) Below the aforesaid noting, it has been mentioned that in SLP (C) No.24950 of 2015 the commission has engaged Mr.Mihir Thakore and, therefore, his opinion be taken.
(K) In the file it is shown that the letter is addressed on the very day, may be possible after the proceedings of the meeting approved, which was scheduled to be held at 5 O'Clock, the letter is addressed to Shri Mihir Thakore, learned Sr. Advocate by the Election Commissioner, but the said letter is not on the letter head of the Election Commissioner or on the letter head of Joint Secretary of the Election Commission, who is the signatory of the said letter. There is no specific mention in the said letter that the opinion being urgent in nature should be given at Page 78 of 89 HC-NIC Page 78 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT the earliest or today or otherwise. (L) It is further shown in the file that the opinion without letter head on plain paper is given by the learned Advocate that if the State Election Commissioner feels that exceptional circumstances have arisen, which squarely falls within the above quoted words, possibly the words of the amendment brought about by Ordinance No.3 of 2015, it would be open to the State Election Commission to postpone the election for a reasonable period till the situation improves and it has been further opined that such decision on the part of the State Election Commissioner would not be contrary to any observations of the Supreme Court in the case of Kishansingh Tomar (supra).
(M) In the noting of the file dated 3.10.2015, there is no consideration of the opinion of the learned Sr. Advocate, but on the same day i.e. on 3.10.2015, the observations of the Apex Court in its decision in the case of Kishansingh Tomar (supra) at paragraph 21 is considered and Gujarat Local Authorities Lands (second amendment) Page 79 of 89 HC-NIC Page 79 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Ordinance of 2015, namely; Ordinance No.3 of 2015 is considered and it has been suggested and noting has been made that appropriate orders be obtained from the State Election Commission. (N) There are further noting on the same day i.e. 3.10.2015 by the Election Commission and therein also, there is no reference to the consideration of the opinion of the learned Sr. Counsel and the decision is taken, English translation of which is as under:-
"All provisions of the Constitution and the contents of the note are taken into account. The report of the Home Department and the opinion of the learned Assessment made in the meeting and the suggestions are taken note of. Considering the present position, it is found that there is no atmosphere for casting of vote by voters in just (nyay) and free atmosphere. Therefore, the election of the local bodies should not be held at present and the condition be reassessed and the election be held after three months. The decision be communicated to the Government. Necessary press note be issued for publication of the decision."
69.It is in light of the aforesaid fact situation available on file we need to further undertake the judicial review of the decision of the of the State Election Commission :
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HC-NIC Page 80 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT (1) As observed by us herein above, the constitution provides for holding of the election before the expiry of the term of five years. It also provides for taking over of the power by newly elected body in place of outgoing elected body. Under these circumstances, the Election Commissioner should treat it as a mandate upon him to hold timely election for maintaining the democratic principles of allowing the voters to choose their own representative in the local body. It is true that there are reports of the Home Department, but there is no opinion expressed leading to the circumstances of impossibility to hold the election. The impossibility of election would mean on account of the circumstances beyond the control of human being i.e. like act of God. It is true that the holding of election in free and fair atmosphere is also required to be ensured by the Election Commissioner, but thereby it cannot be said that such would meet with the test of impossibility to hold the election. It is for the State Election Commissioner to ensure that the atmosphere is made free and fair during the course of the Page 81 of 89 HC-NIC Page 81 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT election and such can be ensured by him by taking support of all the State machinery and it is obligatory on the part of the State to provide all necessary police force, in furtherance to the said action of the Election Commissioner. Some aberration like that of agitation or some aberration in the disturbances of law and order situation cannot be equated with the necessary concomitant to meet with the test of impossibility to hold the election. If such situations are conceived as a valid ground to postpone the election the desire of the constitution to substitute the outgoing elected body with the newly elected body would never be fulfilled. Further, the decision of the Election Commission is also based on the Ordinance, which has been found to be unconstitutional by this Court as per the observations and conclusion recorded herein above. Therefore, the decision can also be said to be vitiated on account of the consideration of the material, which was non-
germane to the exercise of the power. In any case, there is no conclusion recorded that it is impossible to hold election.
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70.Under these circumstances, we are of the view that the decision recorded by the Election Commission to postpone the election is not supported by the ground germane to the exercise of the power. On the contrary, the ground germane to the exercise of the power of impossibility to hold elections was non-existent while taking decision to postpone the election.
71. The attempt made by the learned Counsel for Respondent No.2 to rely upon the observations made by the Apex Court in its decision in the case of Kishansingh Tomar (supra) are the narration of the circumstance but such cannot be read to authorize to the State Election Commission to postpone the election. The language used is the circumstances, which could distract the authority from holding the election. The distraction can be said once the process has begun of the election and the interception thereafter. In any case, even if such circumstances as observed by the Apex Court in the above referred decisions are considered as that of the riot or break down of law and order or natural calamities, none was in existence, Page 83 of 89 HC-NIC Page 83 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT inasmuch as even as per the report of the papers submitted after 3rd of September, 2015 i.e. the day from which the process began, it cannot be said that there was rioting throughout the State or break down of law and order throughout the State or natural calamities throughout the State resulting to met with the test of impossibility to hold the election. The reports, as such, are for showing apprehension for no free and fair atmosphere for voting by the voters. We do not see that such would meet with the test of impossibility to hold the election, which can be said that as a valid basis for postponement of the election. We find it appropriate to reiterate that it is only an act of God, which may make the action impossible would meet with the test of impossibility to hold the election. Even if it is considered for the sake of examination that there could be other circumstances than act of God meeting with the test of impossibility to hold the election, then also such circumstances, cannot and would not include man-made circumstances, and if such an interpretation is made to include man-made Page 84 of 89 HC-NIC Page 84 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT circumstances, the vested interest would be encouraged to create such circumstances for delaying the process of election, which would run counter to not only basic principles of maintenance of democracy, but would frustrate the spirit with which the constitution is amended by insertion of Part IX and IX-A for the power with the elected body in a local self-government. In any case, as observed earlier, no conclusion is recorded for impossibility to hold election on the part of the State Election Commission before taking decision to postponement of the election. Hence, we find that the impugned decision for postponement of the election by the State Election Commission published on 3.10.2015 cannot be sustained and deserves to be quashed and set aside. As it is obligatory on the part of the Election Commissioner to hold election, even as per the constitution with the mandate of the constitution as conceived under Part IX and IX-A of the Constitution, it would be just and proper to issue direction to the Election Commissioner to hold election forthwith of all local bodies. As all process is undertaken by the Election Page 85 of 89 HC-NIC Page 85 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Commission for postponement of elections of all the local bodies it would be just and proper to issue the directions accordingly.
72.In view of the above observations and discussions, the following conclusions:-
(a) Section 15(1) of the Gujarat Panchayats Act inserted by Ordinance No.2 of 2015 is read down in a manner that the Election Commissioner must initiate the process of election at least 45 days prior to the expiry of the term of the respective Panchayats so as to enable the newly elected body to hold the first meeting and assume the power by replacing the outgoing elected body. If Section 15(1) is not interpreted and read accordingly, Section 15(1) would unconstitutional and void.
If there is failure on the part of the State Election Commission to initiate the process for elections 45 days in advance, any citizen affected thereby would be at liberty to approach this Court under Article 226 of the Constitution for seeking appropriate direction against the State Election Commission.
(b) Section 7A of the GPMC Act, Section 8A of Page 86 of 89 HC-NIC Page 86 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Municipalities Act and Section 257 of the Act brought about by Ordinance No.3 of 2015 are held to be unconstitutional and void.
(c) The action of the State Election Commission for postponement of the election of all local bodies in the State is held to be illegal and is set aside. Respondent No.2 Election Commission is directed to initiate process of holding the election of the local bodies forthwith. Respondent No.1 State Government is directed to render all cooperation and assistance, including providing necessary police force and reserved force or any other force as may be requisitioned by the Election Commission for ensuring the election at the earliest in a free and fair atmosphere.
73.The petition is disposed of accordingly. No order as to costs.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) FURTHER ORDER:-
After the pronouncement of the order, Mr.Kamal Page 87 of 89 HC-NIC Page 87 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT Trivedi, the learned Additional Advocate General, on behalf of the State as well as Mr.Thakore, learned Sr. Counsel, on behalf of the Election Commission prayed that, as there is vacation in the Supreme Court, the operation of the order be stayed for some time so as to enable the State or the Election Commission, as the case may be, to approach before the higher forum. Mr.Gohil, learned Counsel for the petitioners has objected to the same by contending that even if the election program is published, there is not going to be voting immediately and further there is constitutional mandate to hold election and, therefore, the said prayer may not be granted.
Considering the facts and circumstances, as we have already observed that the constitution mandates the Election Commission to hold election and to create a situation for newly elected body to take over in place of the outgoing elected body. If the operation is stayed, the election process would be further delayed. Moreover, as observed by us, Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 Page 88 of 89 HC-NIC Page 88 of 89 Created On Wed Oct 21 23:59:34 IST 2015 C/SCA/16313/2015 CAV JUDGMENT of the Act are held to be unconstitutional, therefore, it would be more required for the Election Commission to undertake the process of election at the earliest, so as to uphold and maintain the spirit of the constitution in our democratic set up. Hence, we are not inclined to grant such prayer and the same is rejected. The original file of the State Election Commission, which was made available to us during the course of hearing is returned with the necessary papers to Mr.Thakore, learned Sr. Counsel, who is representing State Election Commission.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) vinod Page 89 of 89 HC-NIC Page 89 of 89 Created On Wed Oct 21 23:59:34 IST 2015