SCA 984705J 1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9847 of 2005 For Approval and Signature: HON'BLE MR JUSTICE AKIL KURESHI ============================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================= KISHANSINH TOMAR CHAIRMAN,STANDING COMMITTEE - Petitioner(s) Versus MUNICIPAL CORPORATION OF AHMEDABAD CITY & 2 - Respondent(s) ============================================================= Appearance : Mr Y.N.OZA, SENIOR ADVOCATE WITH MR.RS SANJANWALA for Petitioner No(s).: 1. M/S TRIVEDI & GUPTA for Respondent No(s).: 1. MR.P.R.ABICHANDANI, A.G.P. for Respondent No(s).: 2. MR.S.N.SHELAT, ADVOCATE GENERAL WITH MR NV ANJARIA for Respondent No(s).: 3. ============================================================== CORAM :HON'BLE MR JUSTICE AKIL KURESHI Date : 23/06/2005 ORAL JUDGMENT 1.Considering the urgency involved in the matter and considering the important issues involved, this petition was taken up by the consent of learned SCA 984705J 2 Advocates appearing for all parties for final disposal at admission stage. 2.In the present petition, the petitioner has prayed for a direction, directing the respondents to take all urgent steps necessary for the purpose of holding election to constitute the Municipal Corporation in the City of Ahmedabad before the expiry of its term. 3.The petitioner who is the Chairman of the Standing Committee of Ahmedabad Municipal Corporation, has approached this Court, by filing this petition apprehending that the respondents are not likely to conduct the election for constitution of a newly elected body of Ahmedabad Municipal Corporation, before the term of the existing Councillers would expire. It is the case of the petitioner and about which there is no dispute that the Ahmedabad Municipal Corporation was constituted on 16th of October, 2000, pursuant to the election of its councillers held in the year 2000 under the Provisions of Article 243 U of the Constitution of India and under the Provisions of Bombay Provincial Municipal Corporation Act (Hereinafter to be referred to as the B.P.M.C. Act). Accordingly, upon completion of a term of five years, the term of the office of the present elected councillers would come to an end on 15th of October, 2005. It is the case of the petitioner that as per the Provisions of Article 243 U of the Constitution, as well as, Section 6B of the B.P.M.C. Act, there is a clear mandate that an election to constitute the Municipal Corporation has to be completed before the expiry of its duration of five years. It is therefore, the case of the petitioner that all formalities for holding the election and for its SCA 984705J 3 completion should be concluded before 15th of October, 2005 so that, newly elected body can be installed and can take charge of the Corporation in place of the existing body of the councillers. The petitioner has stated in the petition that as per the Provisions of Article 243UA of the Constitution of India read with Section 14 of the B.P.M.C. Act, superintendence directions and control for the preparation of all electoral rolls for and conduct of all the elections of the Corporation vest in the State Election Commission (Hereinafter to be referred to as the Commission). The petitioner has stated in the petition that as the five year term of the Ahmedabad Municipal Corporation is to expire on 15th of October, 2005, the petitioner has in his capacity as Chairman of the Standing Committee of the Corporation addressed a letter to the Commission on 12th of April, 2004. In the said letter, the petitioner had requested the Commission to hold the elections of the Ahmedabad Municipal Corporation, so as to constitute a new body of councillers before the 15th of October, 2005. On 21/4/2005 the Standing Committee of the Ahmedabad Municipal Corporation passed a resolution resolving to make a representation to the Commission and to the State Government for issuance of a necessary notification for reconstitution of the wards and for allotment of reserved seats. A copy of the said resolution was forwarded to the Commission on 21/4/2005. This resolution was also brought to the notice of the State Government by a letter dated SCA 984705J 4 29/4/2005. Since, there was no response to the various letters written by the petitioner and the resolution of the standing committee and since, no steps were taken by the respondents for conducting the election before the expiry of the term of the Ahmedabad Municipal Corporation, the petitioner apprehended that unless immediate steps are taken by the Commission, it would be impossible to constitute the Corporation before the term of the existing councillers come to an end. The petitioner has further stated in his petition that the State Government is interested in postponing the election for the Municipal Corporation of Ahmedabad so that an administrator can be appointed by the State Government and the control of the Corporation can be taken over by the Government. It is stated that the majority of the councillers of the Corporation belong to the Congress Party and if elections are held as per the requirement of the Constitution and B.P.M.C. Act, Congress party is likely to get majority. The State Government however does not want to hold the election and is interested in appointment of an administrator. It is therefore, contended that the action of the Government is politically motivated and mala-fide. On the basis of this factual averments the petitioner has filed the present petition and as noted above has prayed for a direction to the respondents to take all steps forthwith for the purpose of holding the election for constituting Municipal Corporation in the City of Ahmedabad before the expiry of the duration of the present Corporation. SCA 984705J 5 4.An affidavit in reply has been filed on behalf of respondent no.1 i.e. Ahmedabad Municipal Corporation. Main averment made in the affidavit in reply dated 14th of June, 2005 filed on behalf of the respondent no.1 is that the respondent no.1 is not responsible for holding election and no relief against the respondent no.1 therefore, should be granted. 5.An affidavit in reply dated 17th of June, 2005 has been filed on behalf of the respondent no.3 i.e. State Election Commission. In the affidavit in reply, it is stated interalia that under the Provisions of Section 5 of B.P.M.C. Act, the State Government has issued notification dated 8th of June, 2005 determining wards for the city of Ahmedabad by which the total number of wards came to be increased from 43 to 45 and also, determining the number of reserved seats for the persons belonging to reserved categories and women. It is further stated that in view of the said notification issued by the State Government, the Commission is required to proceeded to delimit the wards of the City of Ahmedabad in accordance with the statutory rules viz. Bombay Provincial Municipal Corporation (Delimitation of Wards in the City and Allocation of Reserved Seats) Rules, 1994. (These rules shall be referred to hereinafter as the Delimitation of Wards Rules, 1994.) It is stated that upon receipt of the notification from the State Government on 9th of June, 2005, immediately on the same day, the Commission issued a circular requiring Collectors and Designated Officers to furnish details and to make proposals for delimitation of the wards. On 21st of June, 2005 the Commission has convened the meeting with the SCA 984705J 6 Collectors and Election Officers for further progress. It is stated that estimated time that will be taken for the process of delimitation is two months. Thereafter, the next stage will be that of preparation of voters list in each ward, in accordance with the Bombay Provincial Municipal Corporation (Registration of Voters) Rules, 1994.(hereinafter to be referred to as the Registration of Voters Rules, 1994). The respondent no.3 has produced at Annexure – 3 with the said affidavit in reply, a table showing the time period which will be required for completing the election passing through different phases of holding of the election beginning with delimitation of wards and completing with the holding of election. It is stated that, considering the various stages, which will be required to be undertaken by the Commission including the consultation with recognized political parties, in connection with delimitation of wards; it is the assessment of the Commission that it will require a total period of over six months for completing the election given other circumstances being normal. It is stated that the Commission could act only after the State Government issued the notification dated 8/6/2005 and the Commission would strive to complete the election as expeditiously as possible. It is stated that the Commission will ensure that no avoidable delay takes place in constituting the new body of elected councillers. 6. Considering the urgency involved in the matter, learned A.G.P. Shri P.R.Abichandani, instead of taking time for an elaborate reply on behalf of the State Government, produced on record a table showing the SCA 984705J 7 detailed steps taken by the State Government at various stages culminating into issuance of the notification dated 8th of June, 2005. He also made available original files pertaining to this issue for the perusal of the Court. Learned Counsel Shri Y.N.Oza appearing for the petitioner submitted that he has no objection if the Court peruses the files of the State – Government. In the chart produced on behalf of the State Government, it is indicated that on 19/8/2002, the delimitation commission informed the State Government that there is a ban on changing or alteration of boundaries of administrative unit of circles involved. On 4/3/2004 the Government called for required information from all Municipal Corporations for determining the number of wards, councillers and their reserved seats on the basis of cencus of 2001. On 20th of March, 2004, all six Municipal Corporations were asked to submit detailed proposals regarding the number of wards, councillers and reserved seats as per the cencus of 2001. It is stated that final figures of cencus – 2001 were received from the Director of cencus on 16/4/2004. On 17/6/2004 all these Municipal Corporations of the State of Gujarat were requested to send proposal for number of wards, etc... as per the final cencus figures of 2001. Between 19/7/2004 to 4/12/2004, such proposals were received from different Municipal Corporations. It is noteworthy that the proposal was received from Ahmedabad Municipal Corporation only on 4/12/2004. On 18/12/2004 Delimitation Commission was requested to relax the ban on alteration of boundaries. On 3/1/2005, 15/1/2005 and on 23/2/2005 the Delimitation Commission was reminded to grant such permission. Permission was received from the Delimitation SCA 984705J 8 Commission granted vide its letter dated 24/3/2005. On 15/4/2005 proposal was submitted for the approval of the Government for fixation of number of wards, councillers and for seats to be reserved for reserved categories and in favour of women. On 6/6/2005 the proposal was scrutinized by the State Government and approved. Draft notification was also sent on the same day which was vetted by the concerned department on 7th of June, 2005 and on 8th of June, 2005, the notification was issued by the State Government in exercise of powers under Section 5 of the B.P.M.C. Act. 7. On the basis of above factual material, learned Advocate appearing for the respective parties have made detailed submissions on the issues arising in the present petition. Before recording and dealing with rival submissions, it would be useful to take note of some of the provisions contained in the Constitution of India and the B.P.M.C. Act concerning the election of the Municipal Corporations. Article 243 U of the Constitution provides interalia for duration of municipalities. Clause – (1) of article 243 U provides that every municipality unless sooner desolved 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. Clause – (3) of article 243 U provides that the election to constitute the Municipality shall be completed before the expiry of its duration specified in Clause – (1) or before the expiration of a period of six months from the date of its dissolution. Article 243 U of the Constitution reads as under. “243U Duration of Municipalities, etc:- (1) Every Municipality, unless sooner dissolved under any law for SCA 984705J 9 the time being in force, shall continue for five years from the date appointed for its first meeting and not no longer: Provided that a Municipality shall be given a reasonable opportunity of being heard before its desollution. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which i 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 bee so dissolved.” SCA 984705J 10 Article 243ZA of the Constitution of India provides that 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 and subject to the provisions of the Constitution, the legislature of a State may by law, make provision with respect to all matters relating to or in connection with the elections to the municipalities. Article 243ZA of the Constitution reads as follows. “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 Art.243K. (2) 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 Municipalities.” Article 243ZF of the Constitution of India provides interalia that notwithstanding anything contained in this part i.e. Part IXA of the Constitution, any Provision of Law relating to Municipalities in force in a State immediately before the commencement of the Constitution (74th Amendment) 1992, which is inconsistent with the provisions of this part shall continue to be in force until amended or repealed by competent legislature or other competent authority or until the expiration of one year from such commencement which ever is earlier. Article 243ZF of the Constitution is as follows. “243ZF. Continuance of existing laws and Municipalities.- Notwithstanding anything in this Party, any provision of SCA 984705J 11 any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth 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.” Section 5 of the B.P.M.C. Act pertains to Constitution of the Corporation. Sub-section (1) of Section 5 of the B.P.M.C. Act provides that every corporation shall be a body corporate having perpetual succession and a common seal. Sub-section (2) of Section 5 of the B.P.M.C. Act provides that each corporation shall consist of councillers chosen by direct election. Sub-section (3) of Section 5 provides that the State Government by notification in the official gazette shall determine the number of wards into which the city shall be divided, the number of councillers to be elected to the corporation and the number of seats to be reserved in favour of the scheduled caste, schedule tribe, the backward class and women as provided in the Section. It also provides that upon issuance of such a notification, the commission shall carry out the determination of the SCA 984705J 12 boundaries of the wards and the allocation of seats reserved in favour of the scheduled caste, scheduled tribe, backward class and women among the wards in prescribed manner. Sub-section (3) of Section 5 reads as follows. “Where general election is to be held immediately after, i. “a larger urban area” as specified under clause (2) of the article 243 Q of the Constitution of India, is made or ii.the cencus is taken under the cencus Act (37 of 1949) 1948 and the relevant figures of which have been published,or iii.the limits of a city are altered,- (a) the State Government shall, by notification in the official Gazette, determine the number of wards into which the city shall be divided, the number of councillers to be elected to the Corporation and the number of seats to be reserved in favour of the scheduled castes; the scheduled Tribes, the backward classes and women as provided in this section, and (b) the State Election Commission thereafter shall carry out the determination of the boundaries of the wards and the allocation of seats reserved in favour of the scheduled castes, scheduled tribes, the backward classes and women among the wards in the prescribed manner.” Sub-section (4) of Section 5 of the B.P.M.C. Act requires the State Government to reserve seats in favour of the schedule caste, schedule tribe in every corporation. Sub-section (4) of Section 5 reads as follows. SCA 984705J 13 “Seats shall be reserved by the State Government for the scheduled castes and the Scheduled Tribes in every Corporation and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in the Corporation as the population of the scheduled castes and scheduled Tribes in city bears to the total population of the city and such seats maybe allotted by rotation to different wards in the City in the prescribed manner.” Sub-section (5) of Section 5 provides for reservation of seats in favour of the women candidates. The said sub-section reads as follows:- “One-third of the total number of seats reserved under sub-section (4) shall be reserved by the State Government for women belonging to the scheduled castes or, as the case may be, the Scheduled Tribes.” Sub-section (6) of Section 5 provides for reservation in favour of the backward class and reads as follows:- “ One-tenth of the total number of seats to be filed by direct election in every corporation shall be reserved for persons belonging to backward classes and one third of the seats so reserve for backward classes shall be reserved for women belonging to the backward classes.” Sub-section (7) of Section 5 provides for reservation for women within the reserved seats for SCA 984705J 14 schedule caste, schedule tribe and for backward class. Sub-section (7) of section 5 reads as follow: “One-third including the number of seats reserved for women belonging to the scheduled caste, the scheduled Tribes and the backward classes) of the total number of the seats to be filled by direct Election in the Corporation shall be reserves for women and such, seats may be allotted by rotation to different wards in the city in the prescribed manner.” Section 6 of B.P.M.C., Act interalia provides that every corporation unless sooner dissolved shall continue for five years form the date appointed for its first meeting and no longer. Section 6 of B.P.M.C. Act reads as follows. “ 6(1) Every Corporation unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer. (2) A Corporation Constituted upon the dissolution before the expiration of its duration shall continue only for the remainder of the period for which it would have continued under Sub-section (1) had it not been so dissolved.” Section 6A of the B.P.M.C. Act provides that the term of the office of the councillers shall be co- extensive with the duration of the corporation. Section 6 (A) reads as follows. “ Section 6A The term of the office of the Councillors shall be co-extensive with the duration of the corporation.” Section 6B of the B.P.M.C. Act provides interalia SCA 984705J 15 that an election to constitute a corporation shall be completed before the expiration of its duration specified in sub-section 1 of Section 6 or before the expiration of six months from the date of its dissolution. Section 6B reads as follows. “6B An election to constitute a corporation shall be completed- (a)before the expiration of its duration specified in sub-section (1) of the section 6; (b) before the expiration of six months from the date of its dissolution: provided that where the remainder of the period for which the dissolved Corporation would have continued is less than six months, it shall not be necessary to hold any election under this section fro constituting the Corporation for such period;” Section 6C of B.P.M.C. Act provides for transitor period with which we are not directly concerned. Section 7A makes provision for appointment of an administrator after expiry of normal term of the office of councillers. Sub-section (1) of Section 7A reads as follows:- “ 7A[1] Where, (i) the duration of a Corporation has already expired or is due to expire during the transitory period as referred to in sub-section (1) of section 6C and election to constitute the Corporation not be Completed before the expiry of its duration, or (ii)due to unforseem circumstances such as natural calamity riots, Communal disturbance the election to constitute Corporation could not be completed SCA 984705J 16 before the expiry of its duration, the State Government may be 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 the first meeting, after general election]” It may be noted that the above noted provisions contained in B.P.M.C. Act were introduced pursuant to an Amendment Act i.e. Gujarat Act No.16 of 1993 to bring the provisions of the B.P.M.C. Act pertaining to election of the councillers and constitution of the Corporation in tune with the provisions of the Constitution of India introduced in Article 243 U introduced by Constitution (73rd Amendment) Act, 1992. 8. In the above factual background and statutory provisions, it is contended on behalf of the petitioner by learned Senior Counsel Shri Oza that, it is bounden duty of the Commission to hold and complete the election for the councillers of a Corporation well before the term of the Corporation expires. He contends that it is the Constitutional mandate on the Commission to conclude the election so that duly elected body of councillers can take over the charge on completion of the term of the outgoing body of councillers in a Corporation. Pointing out the Provisions of Article 243 U of the Constitution of India, as well as, Section 6 and 7A of the B.P.M.C. Act, he contends that the Commission has an obligation to conduct and finally conclude the elections so that there is