SURESH MAHAJAN versus STATE OF MADHYA PRADESH AND ANR. on 10 May 2022

1. This writ petition assails the validity of Section 10(1) of theMadhya Pradesh Municipal Act, 1956, Sections 12, 23 and 30 of theMadhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993and Section 29 of the Madhya Pradesh Municipalities Act, 1961 as beingarbitrary and usurping the powers and independence of the State ElectionCommission.

2. By stated amendments, the State Government has beenauthorized to issue notification from time to time determining the numberand extent of wards to be constituted in the concerned local bodies.More or less, similar situation obtains in the dispensation provided for inthe State of Maharashtra, after the amendment of relevant enactmentsas noted in our order dated 04.05.2022 passed in SLP(C) No. 19756 of2021 and connected cases.

3. The grounds urged in the present writ petition are similar to theissues raised and involved in the aforementioned matters pertaining toState of Maharashtra. This Court vide order dated 04.05.2022 has alreadynoted that deeper examination of the questions raised by the parties willbe necessary; and, therefore, the matters have been ordered to be postedfor further hearing. It is appropriate that even this matter is heard alongwith the said group of cases. We order accordingly.

4. Reverting to the issue of non-conduct of elections in respect oflarge number of local bodies in the State of Madhya Pradesh, even thatis no different. As a matter of fact, the number in this State is quitestaggering. The chart handed over to the Court by the learned counselfor the Madhya Pradesh State Election Commission, indicates that thereare about 321 urban local bodies, where elections have not been heldfrom 2019-2020. Further, the local bodies at the grassroot level (rurallocal bodies) where elections have not been held in the same manner arearound 23,073, as of now.

5. The elections have not been held assumedly for the same reasonas in the case of State of Maharashtra, namely, the State has still notbeen able to complete the triple test formalities as predicated in the decisionof this Court in Vikas Kishanrao Gawali Vs. State of Maharashtra[1].

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AAs a result of which, reservation for Other Backward Classes (OBC)category cannot be provisioned by the State Election Commission. Thishas happened despite the peremptory directions given by this Court videsuccessive orders, including dated 03.03.2022. This Court had made itamply clear that conduct of elections to install the newly elected bodyin the concerned local self-government cannot brook delay, owing to theBConstitutional mandate exposited in Article 243-E and 243-U includingthe provisions in the concerned State Legislation in that regard.

6. A somewhat hiatus situation occurs and is permitted only whenthe dissolution of a local body is necessitated before the expiry of theterm of that local body. Else, the term of the local self-government hasCbeen specified as 5 (five) years from its first meeting, “and no longer”,in Article 243-E as well as in Article 243-U. This has been restated bythe Constitution Bench of this Court in Kishansing Tomar Vs. MunicipalCorporation of the City of Ahmedabad & Ors.[2].

7. Thus, all concerned are obliged to ensure that the newly electedDbody is installed in every local body before the expiry of 5 (five) yearsterm of the outgoing elected body. Even in case of dissolution before theexpiry of five years period, where an Administrator is required to beappointed by the State, that regime cannot be continued beyond 6 (six)months by virtue of relevant provisions in the respective StateELegislation(s).

8. This constitutional mandate is inviolable. Neither the StateElection Commission nor the State Government or for that matter theState Legislature, including this Court in exercise of powers under Article142 of the Constitution of India can countenance dispensation to theFcontrary.

9. Despite such constitutional mandate, the reality in the State ofMadhya Pradesh as of now, is that, more than 23, 263 local bodies arefunctioning without the elected representatives for last over two yearsand more. This is bordering on break down of rule of law and more so,Gpalpable infraction of the constitutional mandate qua the existence andfunctioning of such local self- government, which cannot becountenanced.

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H(paras 12 to 14 and 22 to 28, in particular)

10. The fact that the State legislature has effected amendmentsin the concerned enactment(s) authorizing the State Government todetermine the number and extent of wards to be constituted in the localbodies within the State also cannot be a tangible or legitimate ground tonot notify the election programme within the time-frame specified by theConstitution and the law made by the Legislature in that regard.

11. In any case, the ongoing activity of delimitation or formation ofward cannot be a legitimate ground to be set forth by any authority muchless the State Election Commission - to not discharge its constitutionalobligation in notifying the election programme at the opportune time andto ensure that the elected body is installed before the expiry of 5 (five)years term of the outgoing elected body. If there is need to undertakedelimitation - which indeed is a continuous exercise to be undertaken bythe concerned authority - it ought to be commenced well-in-advance toensure that the elections of the concerned local body are notified in timeso that the elected body would be able to take over the reigns of itsadministration without any disruption and continuity of governance(thereby upholding the tenet of Government of the people, by the peopleand for the people). In other words, the amendment effected to thestated enactments cannot be reckoned as a legitimate ground forprotracting the issue of election programme of the concerned local bodies.

12. Therefore, we direct the State Election Commission by wayof interim order, to issue election programme without any further delayon the basis of the wards as per the delimitation done in the concernedlocal bodies when the elections had become due consequent to expiry of5 (five) years term of the outgoing elected body or before coming intoforce of the impugned Amendment Act(s) whichever is later. On thatnotional basis, the State Election Commission ought to proceed withoutany exception in respect of concerned local bodies where elections aredue or likely to be due in the near future without waiting even for thecompliance of triple test by the State Government for providing reservationto Other Backward Classes. We have no manner of doubt that onlysuch direction would meet the ends of justice and larger public interestsconsistent with the constitutional mandate that the local self-governmentmust be governed by the duly elected representatives uninterruptedexcept in case of its dissolution before expiry of the term on permissiblegrounds.

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A13.For, until the triple test formality is completed “in all respects”by the State Government, no reservation for Other Backward Classescan be provisioned; and if that exercise cannot be completed before theissue of election programme by the State Election Commission, the seats(except reserved for the Scheduled Castes and Scheduled Tribes whichis a constitutional requirement), the rest of the seats must be notified asBfor the General Category.

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14. It was urged that population of OBC in some of the localbodies is more than 50% and for that reason, percentage indicated in thereport submitted by the Commission is a conservative approach and needsto be taken forward. That cannot be the basis to disregard theCconstitutional mandate and need to observe triple test procedure indicatedby this Court. The political parties who claim to be the protagonist ofparticipation of OBC in the governance of local bodies, are free tonominate candidates belonging to OBC category in the concernedconstituencies and even against all the General seats available afterDreserving for Schedule Castes and Schedule Tribes. We do not wish todilate any further on the plea under consideration.

15. We once again reiterate that the process of delimitation workand/or triple test compliance is a continuous, complex, time consumingand more so without any timeline (directly linked to the expiry of theEterm of the outgoing elected body). Whereas, the conduct of electionsfor installing newly elected body to take over the reins from the outgoingelected representative whose term had expired, is explicitly providedfor by the Constitution and the relevant enactments. Therefore, the formerneed not detain the issue of election programme by the State ElectionCommission, in respect of local bodies as and when it becomes dueFmuch less overdue, including where the same is likely to become due inthe near future.

16. Be it noted that as and when the delimitation exercise or tripletest formality, as the case may be, is completed, the elections conductedthereafter may have to abide by such dispensation.G

17. If the grounds pressed into service by the State authoritieswere to be accepted, it would be infeasible for any Election Commission- be it Madhya Pradesh State Election Commission - to notify the electionprogramme well-in-time and to ensure that newly elected body is installedbefore the expiry of 5 (five) years tenure of the outgoing elected body.H

That would defeat the constitutional mandate and go against the tenet oflocal self- government by democratically elected representatives,uninterrupted.

18. To put it differently, completion of delimitation exercise or beit triple test formality, as the case may be, can wait if not completed wellbefore the expiry of five years term of the outgoing elected body, includinggiving enough time to the Election Commission to complete the electionprocess within such time. Thus, the declaration of election programmecannot be delayed by the Election Commission on that account. For, itwould inevitably result in creating hiatus situation upon expiry of 5 (five)years term of outgoing elected body. Such an eventuality needs to beeschewed by all the duty holders. A priori, it is not only a constitutionalobligation of the State Election Commission but also of the StateGovernment including of the constitutional Courts.

19. In view of the above, we have no hesitation in directing theMadhya Pradesh State Election Commission to proceed on notional basisand issue election programme in respect of concerned local body byreckoning the delimitation/formation of wards thereof as on the datewhen the election of the concerned local body had “in fact” become dueor before coming into force of the (impugned) Amendment Act, which isunder-challenge before this Court in the present proceedings, whicheveris later.

20. The State election Commission must do so not later than twoweeks from today. The State Government shall extend adequate logisticalsupport to the State Election Commission for accomplishing the task interms of this order.

21. During the course of the argument, our attention was drawnto the First Report dated 05.05.2022 prepared by the Backward ClassesCommission constituted by the State Government, as the first steptowards the triple test obligation as per the decision of this Court.However, we do not intend to examine the said report or comment uponit in the present proceedings.

22. Suffice it to note that mere preparation of the First Report bythe stated Commission cannot be regarded as complete compliance oftriple test requirement. In one sense, it is an inchoate situation and only astep towards final declaration by the State Government to provide specifiedjust percentage of reservation for OBC category local body wise.

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A23. Mr. Tushar Mehta, learned Solicitor General was at pains toimpress upon us that the First Report having been prepared by theBackward Classes Commission appointed by the State dated 05.05.2022,the State Government would now move into action and undertake theremaining steps to notify the seats to be reserved for Other BackwardClasses in the concerned local bodies. Prima facie, going by the spirit ofBthe judgment of this Court in Vikas Kishanrao Gawali (supra), eventhat exercise needs to be undertaken by the especially appointedCommission (dedicated) for that purpose. The report as presented to ushas not engaged itself in that exercise which it ought to have done localbody wise. Hence, this report in the present form will be of no avail.C

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24. In other words, the exercise of collation of empirical data andafter analysis thereof, the Commission is expected to makerecommendation regarding the number of seats to be reserved for OtherBackward Classes “local body wise”. Apparently, that exercise has notbeen undertaken by the Commission. The State Government can actDupon only thereafter and as per the recommendations of the Commission- which is an independent body created to ensure that there is no over-breadth of such reservation in the “concerned local body”.

25. Be it noted by all concerned that the nature and purpose ofreservation in the context of local self-government is markedly differentEfrom that for higher education and public employment, as expoundedby the Constitution Bench[3]of this Court.

26. As aforesaid, the State Election Commission need not waitany further, but shall notify the election programme without any furtherdelay in respect of local self-government whose election(s) had becomeFdue; and in the present case, as aforesaid, overdue in respect of 23,263local bodies across the State of Madhya Pradesh, as of now.

27. Acceding to the argument set forth on behalf of the State ofMadhya Pradesh would be over-looking and in fact a case of violation ofthe successive directions given by this Court to the State ElectionGCommission to speed up the election process in respect of local bodieswhere elections are due/overdue and to proceed without providingreservation for Other Backward Classes (but limited to the constitutionalreservation for Scheduled Castes and Scheduled Tribes) until the 3 K. Krishna Murthy (Dr.) & Ors. vs. Union of India & Anr., (2010) 7 SCC 202 [paraH82(i)]

completion of triple test formality by the State “in all respects”. As andwhen, the formalities of triple test are completed, that can be reckonedfor future elections to be held thereafter. However, elections which arealready due need not and cannot be delayed on that count in view of theconstitutional mandate.

28. We were also informed by the learned counsel appearing forthe Madhya Pradesh State Election Commission during the course ofarguments that some writ petitions are pending before the High Court inwhich interim orders have been passed and that may come in the way ofthe State Election Commission to notify the election programme. In thatregard, we make it clear and also direct that the State Election Commissionmust abide by the directions and observations in this order uninfluencedby any order of the High Court or the Civil Court on the subject of electionsof the concerned local self-government, as the case may be. If anyorder passed or to be passed hereafter by the High Court or the CivilCourt in the State of Madhya Pradesh, is in conflict with the directionsgiven by this Court, the same shall be deemed to have been supersededin terms of this order and not to be acted upon without the prior permissionof this Court.

29. As requested by Mr. Tushar Mehta, learned Solicitor General,we place on record that all steps taken by the State Election Commissionand we may add even the State Government, on the basis of the directionsgiven in terms of this order will be subject to the outcome of theseproceedings.

30. We once again make it clear that if delimitation is not doneby the State Government in terms of Amendment Act(s) of 2022 or thetriple test requirement is completed “in all respects” for providingreservation to OBC category, the State Election Commission shall giveeffect to this order also in respect of upcoming elections of local bodieswhich would/had become due by efflux of time.

31. We also make it clear that this order and directions given arenot limited to the Madhya Pradesh State Election Commission/State ofMadhya Pradesh; and Maharashtra State Election Commission/State ofMaharashtra in terms of a similar order passed on 04.05.2022, but to allthe States/Union Territories and the respective Election Commission toabide by the same without fail to uphold the constitutional mandate.

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A32.List this matter on 12.07.2022, to be heard along with SLP(C)No. 19756 of 2021.

33. The Madhya Pradesh State Election Commission to filecompliance report in due course.

34. In case of any difficulty, liberty is granted to the MadhyaBPradesh State Election Commission to apply before the returnable dateso as to ensure that the election programme in respect of concernedlocal body is taken forward without any interruption.

Nidhi Jain

C(Assisted by : Shashwat Jain, LCRA)

Directions issued.

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