SCA 19047/2005 Order dated 21/09/2005 Page # 1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 19047 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE D.H.WAGHELA ============================================================== 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 ? ============================================================== BABUBHAI KARSANBHAI RAIKA & 2 - Petitioner(s) Versus GUJARAT STATE ELECTION COMMISSIONER & 9 - Respondent(s) ============================================================== Appearance : MR YATIN OZA, Sr. Advocate with MR SHAMIK SANJANWALA for Petitioner(s) : 1 - 4. MR SN SHELAT, ADVOCATE GENERAL assisted by MR NV ANJARIA for Respondent(s) : 1, MR PRASHANT G DESAI for Respondent(s) : 2, MR PRANAV G DESAI for Respondent(s) : 3, MR RM CHHAYA for Respondent(s) : 4 – 5. MR KAMAL B TRIVEDI, ADDL. ADVOCATE GENERAL with MR ARUN D OZA, GOVERNMENT PLEADER for Respondent(s) : 6 MR DD VYAS, Sr. Advocate and MR BS PATEL for the Interveners. ================================================================ SCA 19047/2005 Order dated 21/09/2005 Page # 2 CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 21/09/2005 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE M.S. SHAH) In this PIL petition under Article 226 of the Constitution, four Councillors of Surat, Vadodara, Rajkot and Bhavnagar Municipal Corporations have prayed for a writ of mandamus or any other appropriate writ to direct the Gujarat State Election Commissioner, the Municipal Corporations of the cities of Surat, Vadodara, Rajkot and Bhavnagar and the State of Gujarat to take all steps necessary for the purpose of holding elections for constituting the Municipal Corporations for the respective cities before the expiry of duration of the term of the present elected bodies of those Corporations constituted pursuant to the elections held in October, 2000. 2. It is the case of the petitioners in this petition filed on 16th September 2005 that since the Municipal Corporations for the cities of Surat, Vadodara, Rajkot and Bhavnagar were constituted in October 2000 and the term of the elected bodies is due to expire on 16th, 16th, 15th and 20th October 2005 respectively, under the mandate of Clause (3) of Article 243U of the Constitution, the Election Commission is required to hold elections before the aforesaid dates; that the Constitution does not contemplate any hiatus between the expiry of the term of the existing body and the completion of elections for constituting the newly elected body. It is contended by the petitioners that the State Election Commission has violated the constitutional mandate contained in Article 243U(3) by not taking steps to hold elections before the aforementioned dates. 3. When this petition came up for preliminary hearing on Monday, 19th September SCA 19047/2005 Order dated 21/09/2005 Page # 3 2005, Rule was made returnable on 20th September, 2005. Affidavit in reply has been filed by Mr PC Barot, Deputy Election Commissioner in the State Election Commission (“the Election Commission” or “the Commission”) pointing out the reasons for inability of the Commission to hold elections to the Municipal Corporations of Bhavnagar, Jamnagar, Surat, Rajkot and Vadodara within the time limits stipulated in Clause (3) of Article 243U of the Constitution. It has been mainly submitted on behalf of the Commission that - (i) in view of the provisions of Section 5(3)(a) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as “the BPMC Act”), upon availability of the 2001 census figures, the State Government was required to issue necessary notifications in the Official Gazette determining the number of wards into which the cities shall be divided, the number of councillors to be elected to the Corporations and the number of seats to be reserved in favour of the Scheduled Castes, Scheduled Tribes and women and that thereafter the Election Commission was to carry out determination of the boundaries of the wards and the allocation of seats reserved in favour of the aforesaid classes amongst the wards in the prescribed manner. After getting the 2001 census figures on 16.4.2004, the Commission went on reminding the State Government since April 2004 to issue the necessary notifications under the aforesaid provisions having regard to the 2001 census figures. (ii) It was only when the State Government issued the notifications for this purpose on 8th June 2005 determining the number of wards, the number of constituencies and the number of seats reserved for the reserved categories that the Commission could undertake the exercise of determination of the boundaries of the wards and the allocation of seats reserved in favour of the reserved categories and issued the draft notifications to that effect on 18th July 2005 inviting objections and after SCA 19047/2005 Order dated 21/09/2005 Page # 4 considering those objections and after holding consultations with the political parties recognized under the Representation of People Act, 1951, the Commission issued the notifications dated 31st August 2005 determining the boundaries of the wards and the allocation of seats in favour of the reserved categories. (iii) On account of the census figures of 2001, the number of wards, the number of seats and the reservation of seats in wards have undergone substantial changes. In Surat, the population as per 2001 census figures has gone upto 24.33 lakhs as against the population of 14.98 lakhs as per 1991 census. In Surat also, the number of wards has increased, the number of seats has also increased and there is consequential increase in the reservation of seats for different categories. Prior to delimitation of wards on 31st August 2005, there was such imbalance that in one ward in Surat the population is 36,321 and in another ward in the same city, the population is 1,51,474. (iv) In Vadodara Municipal Corporation, the territorial limits have been extended with area of 40.73 sq.kms. by including nine adjoining gram panchayat areas with population of about 81,525 persons, out of whom about 45,000 to 50,000 people are likely to get right of franchise at the Municipal elections. In view of the increase in population, from 10.22 lakhs in 1991 to 13.87 lakhs in 2001, the number of wards has gone up and also the number of seats has increased from 78 to 84 and there is consequential increase in the number of seats for the reserved categories. (v) As required under Section 8 of the BPMC Act, the electoral rolls for wards in each of the Corporations concerned are being revised and the revision as on 1.1.2005 is underway in accordance with the following schedule notified in the Commission notification dated 3.9.2005 :- SCA 19047/2005 Order dated 21/09/2005 Page # 5 Sr.No Particulars Programe 1 Publication of the preliminary ward-wise voters' list for 2005 under Rule 4 29.09.2005 2 Last date for lodging objections under Rule 6 21.10.2005 3 Last date for taking final decisions after scrutiny of objections 07.11.2005 4 Publication of supplementary ward-wise voters' list for 2005 under Rule 6 11.11.2005 5 Final publication of ward-wise voters' list under Rule 7(1) 14.11.2005 (vi) Since after final publication of the ward-wise voters' lists for the reconstituted wards, the final stage of the election process will comprise of minimum 28 days, the election program can not be completed before 16th December, 2005. It is, therefore, the stand of the Election Commission that if the Commission is required to prepone the date of election from December 2005 to any earlier month, the elections will have to be held on the basis of the electrol rolls as on 1.1.2004 and the entire exercise of delimitation of wards and increasing the number of seats and the number of reserved seats will be set at naught. (vii) The Commission has also referred to certain administrative and physical difficulties in smooth holding of elections if there is any preponement of the election program from December 2005 to any earlier month. It is pointed out that the State Election Commission is also engaged in the work of holding elections to 50 Municipalities in the State which are due and to be completed before 31st October, 2005 (except Mehsana Municipality where the date is 31.12.2005). SCA 19047/2005 Order dated 21/09/2005 Page # 6 There are also 25 District Panchayats and 209 taluka panchayats where elections are due and the work of holding and completing the elections to the said bodies is already underway. It is also submitted that intervention of festivals like Navratri and month of Ramzan is also considered to be a relevant consideration for announcing the election programs to the local bodies. The preparatory work comprises of selection of polling booths with their physical verification in respect of each of the wards of the five Municipal Corporations, appointment of Returning Officers, Presiding Officers and Polling Officers at each polling booth, printing of stationery, ballot papers, arranging for Electronic Voting Machines and getting them examined by the experts who are to come from outside the State, the quantity of indelible ink to be obtained, and garnering of other required machinery for the attendant election work like printing of voters list within a short time gap. It is submitted that it may not be possible to undertake all these voluminous work simultaneously during the calendar of dates for holding of elections. In fact, the Commission as a matter of administrative convenience makes formal announcement of elections only after completion of above spadework and thereafter actual notification of calendar of election is announced. AHMEDABAD MUNICIPAL CORPORATION ELECTIONS 4. Since strong reliance has been placed by the petitioners on the interlocutory order dated 13.9.2005 of the Hon'ble Supreme Court in the litigation pertaining to elections to the Ahmedabad Municipal Corporation, it is necessary to refer to the said litigation. 4.1 On 20.5.2005, Mr Kishansinh Tomar, Chairman, Standing Committee of the Ahmedabad Municipal Corporation filed Special Civil Application No. 9847 of 2005 praying for a writ of mandamus to direct the State Election Commissioner, State of SCA 19047/2005 Order dated 21/09/2005 Page # 7 Gujarat and the Ahmedabad Municipal Corporation to forthwith take all steps necessary for the purpose of holding elections for constituting the Municipal Corporation for the City of Ahmedabad before expiry of the duration of the Corporation i.e. before 15th October 2005. In the said proceedings, affidavit in reply was filed on behalf of the State Election Commission pointing out various time limits required to be observed for holding elections to the Corporation. On behalf of the State Government also, various documents were produced to show that the State Government had taken expeditious steps for holding elections to the Ahmedabad Municipal Corporation and other Corporations, but there was a ban imposed by the Delimitation Commission against reconstitution of wards and it was in March 2005 that the Delimitation Commission permitted the State authorities to undertake the exercise of delimitation of wards and determination of seats on the basis of 2001 census figures. 4.2 After hearing the learned counsel for the parties, a learned Single Judge of this Court recorded the statement made on behalf of the Election Commission that the elections to the Ahmedabad Municipal Corporation will be held by 31st December, 2005. In Letters Patent Appeal, another Division Bench of this Court confirmed the said decision including the following findings given by the learned Single Judge :- “After receipt of the permissions from the Delimitation Commission (on 28.3.2005), one may notice from the events chronologically noted herein above that real urgency was shown by the State Government from 6th of June, 2005 onwards. This had co-incided with the receipt of notice from this Court in the present proceedings. It may be noted that this Court issued notice on 23rd of May, 2005 making it returnable on 7th of June, 2005. The notice was served on the State Government on or around 27th May, 2005. Soon thereafter, the machinery moved with greater urgency culminating into issuance of notification under Section 5 of the B.P.M.C. Act. Despite these factors I am unable to see any political malafides or any design on part of the State Government to intentionally delay the election of the Municipal Corporations. The petitioner has not laid down any firm foundation to establish malafides on the part of the respondents. I have taken some pains to examine the actions of the State Government and the different stages through SCA 19047/2005 Order dated 21/09/2005 Page # 8 which the process was undertaken which ultimately resulted into issuance of the notification dated 8th June, 2005. Though, it is true that some time was consumed at some stages as noted herein above and perhaps some greater urgency would have ensured issuance of notification somewhat earlier, I find that State Government had taken sufficient efforts to ensure that the notification is issued expeditiously.” The Letters Patent Bench also expressed its agreement with the learned Single Judge in coming to the conclusion that in view of the provisions of Article 243U(3) of the Constitution and Section 6B of the BPMC Act, “the Commission is under an obligation to complete the election before expiry of the term of the existing elected body. But in our view, non compliance of these provisions which casts a duty on the public authority like the Commission to do a particular act within the particular time frame does not vitiate the election (after expiry of the term) and even the appointment of Administrator during the short interregnum cannot be dubbed as illegal. The Legislature must have been conscious of the possibility of delay in the completion of election before the expiry of the term of the elected body and, therefore, an express provision has been made in the form of Section 7A for appointment of Administrator. The appellant has not challenged the vires of that Section and, therefore, we need not delve upon that issue.” The learned Single Judge gave the following finding regarding the election schedule (elections to be completed by 31st December 2005) which came to be confirmed by the Letters Patent Bench :- “Taking into consideration the onerous task, which has to be undertaken by the Election Commission and the State Government we must observe that the time schedule given by the Election Commission is perfectly justified.” 4.3 The matter has been carried in appeal before the Hon'ble Supreme Court [SLP (C) No. 18740 of 2005] and after noting the findings given by this Court, the Apex Court has granted leave and referred the matter to the Constitution bench and passed the following SCA 19047/2005 Order dated 21/09/2005 Page # 9 interlocutory order on 13.9.2005 :- “Having heard learned counsel for the parties, without prejudice to the rights and contentions, subject matter of the appeal, we are of the view that new Corporation shall be constituted on or before 15th October, 2005. We accept the alternate proposed election programme for Ahmedabad Municipal Corporation, as submitted by Mr Dave, learned senior counsel, before this Court. It reads thus : 1. Date of Notice 15-9-2005 2. Last date of making nomination 22-9-2005 3. Date of scrutiny 24-9-2005 4. Last date of withdrawal 27-9-2005 5. Date of Poll 13-10-2005 6. Date of counting 15-10-2005” SUBMISSIONS ON BEHALF OF PETITIONERS 5. Mr Yatin Oza, learned counsel for the petitioners has vehemently submitted that as held in the decision of this Court in Rasikchandra D. Acharya vs. State, 1995 (1) GLR 36, no hiatus is contemplated by the Constitution between the expiry of the non- extendable five year term of the Corporation and the completion of election for constitution of the new Corporation. This Court may, therefore, following the interlocutory order passed by the Apex Court, direct the State Election Commission to hold elections to all the Municipal Corporations in the State before the date of completion of five year term falling between the period from 15th October and 19th October 2005. It is submitted that since the provisions of Article 243U(3) must be given overriding effect over all the different provisions being relied upon by the State Election Commission, there cannot be any impediment to enforcement of the mandatory provisions of Article 243U(3). SCA 19047/2005 Order dated 21/09/2005 Page # 10 The learned counsel for the petitioners has also brought to our notice that the following particulars were placed for consideration of the Hon'ble Supreme Court at the hearing on 12.9.2005, which particulars were set out in a hand written note submitted by the learned counsel for the State Election Commission before the Hon'ble Supreme Court :- “Implications going by 1991 Census figures 1. No. of wards increased from 43 to 45 2. No. of seats increased from 129 to 135 3. Population increased from 28,76,710 to 35,20,085 as on 2001 4. As on 2005 the number of population & voters has substantially increased. 5. No. of SC seats increased from 11 to 17. 6. No. of SEBC seats increased from 9 to 13 7. No. of reserved seats for women (General) increased from 33 to 35 8. No. of unreserved seats increased from 65 to 69 All the above issues will not be complied if elections are conducted by 1991 census. Looking to the actual field realities as existing in 2005 it cannot be called a fair election. Whether the directions are (to be) applied only to AMC or all 6 Municipal Corporations?” It is vehemently submitted that all the grounds being urged by the respondents were also pressed into service in the Ahmedabad Municipal Corporation case. Since those ground did not find favour with the Hon'ble Supreme Court as must be inferred from the order dated 13.9.2005, similar orders may be passed in the present petition also. SCA 19047/2005 Order dated 21/09/2005 Page # 11 SUBMISSIONS ON BEHALF OF RESPONDENTS 6. On the other hand, Mr SN Shelat, learned Advocate General appearing for the Election Commission has submitted that the petition for elections to the Ahmedabad Municipal Corporation was filed in May 2005, whereas the present petition is filed only on 16th September and is being heard and decided on 21st September and, therefore, the Election Commission may not be required to hold the elections in October. It is submitted that Articles 243ZA and 243ZG of the Constitution themselves provide for a law to be made by the State Legislature for all matters relating to or in connection with the elections to the Municipalities, including delimitation of constituencies or the allotment of seats to such constituencies. Further Article 243P(g) defines “population” as “the population as ascertained at the last preceding census of which the relevant figures have been published”. Article 243R provides for composition of Municipalities by filling in seats by persons chosen by direct election from the territorial constituencies to be known as wards. Article 243T provides for reservation of seats for Scheduled Castes, Scheduled Tribes and women. It is, therefore, submitted that the time taken by the Election Commission for giving effect to the provisions of Articles 243R, 243T, 243ZA(2) read with Article 243ZG and 243P(g) cannot be stigmatized as violation of the provisions of Article 243U(3) of the Constitution. It is submitted that the controversy is required to be considered in the background of the facts already narrated in the reply affidavit (which are noted in para 3 hereinabove). 7. As regards the order dated 13.9.2005 of the Hon'ble Supreme Court in the case of elections to the Ahmedabad Municipal Corporation, the learned Advocate General submitted that the same is an interlocutory order which may not be treated as a binding precedent for a similar relief in the petition which suffers from delay and laches. It is also SCA 19047/2005 Order dated 21/09/2005 Page # 12 submitted that the Hon'ble Supreme Court has the power to pass such orders under Article 142 of the Constitution. The learned Advocate General has also submitted that an interlocutory application has been filed by Mr Hasmukh Chhaganbhai Patel on 15.9.2005 in aforesaid SLP No. 18740 of 2005 of Mr Kishansinh Tomar praying for the following relief :- “It is most respectfully prayed that this Hon'ble Court may be pleased to : a) direct the Respondent No. 2 and Respondent No. 3 to hold elections for constituting the Municipal Corporations for the Cities of Rajkot, Bhavnagar, Surat, Jamnagar and Vadodara before the date of expiry of the term of the elected body of those Corporations as mandated by Article 243U of the Constitution of India.” It is stated that no orders have been passed by the Hon'ble Supreme Court on the aforesaid application of Mr Hasmukh Patel. It is, therefore, submitted that if the Hon'ble Supreme Court was inclined to give similar directions for holding elections for the other Municipal Corporations in the State of Gujarat, such a direction would have been given on the aforesaid interlocutory application or the orders would have been passed while pronouncing the orders on 13.9.2005 because the learned counsel for the State Election Commission had also mentioned in the handwritten note (submitted on 12.9.2005) referred to by Mr Oza - “whether these directions are (to be) applied only to AMC or all 6 Municipal Corporations ?”. 8. We have also heard Mr DD Vyas, learned counsel representing the residents of Surat and Mr BS Patel, learned advocate representing three residents of the villages which are added to the limits of the Vadodara Municipal Corporation as per the notification dated 1.8.2002. The said learned advocates have been permitted to make their submissions as interveners and they have supported the respondent authorities by contending that if the elections were held on the basis of the unrevised electrol rolls, the names of a large number of residents of Surat and Vadodara will not be found in the SCA 19047/2005 Order dated 21/09/2005 Page # 13 voters' lists and they will not be able to exercise their franchise in the forthcoming elections. Mr BS Patel, learned advocate has stated that there are about 40,000 to 50,000 such persons whose names would be included in the voters' list to be published on 29.9.2005. Mr DD Vyas has also submitted that there are more than one lakh persons whose names would be added to the voters' list to be published on 29.9.2005. CONSTITUTIONAL AND STATUTORY PROVISIONS 9. Before dealing with the rival submissions, it is necessary to refer to the relevant provisions of Part IX - A of the Constitution and also of the BPMC Act. PART IX-A - THE MUNICIPALITIES 243P. Definition.- In this Part, unless the context otherwise requires, (d) 'Municipal area' means the territorial area of a Municipality as is notified by the Governor; (e) 'Municipality' means an institution of self-government constituted under article 243Q; (g) 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published. Article 243Q provides for three types of local authorities in urban areas – a Municipal Corporation for a larger urban area, a Municipal Council for a smaller urban area and a Nagar Panchayat for an area in transition from a rural area to an urban area. 243R. Composition of Municipalities.- (1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal SCA 19047/2005 Order dated 21/09/2005 Page # 14 area shall be divided into territorial constituencies to be known as wards. (2) ... ... .... ... .... 243T. Reservation of seats.- (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the scheduled Tribes in the Municipal area bears