Case: SURESH MAHAJAN Vs. STATE OF MADHYA PRADESH &amp; ANR

2. By stated amendments, the State Government has been authorized to issue notification from time to time determining the number and extent of wards to be constituted in the concerned local bodies. More or less, similar situation obtains in the dispensation provided for in the State of Maharashtra, after the amendment of relevant enactments as noted in our order dated 04.05.2022 passed in SLP(C) No. 19756 of 2021 and connected cases.

Court's reasoning:
4. Reverting to the issue of non-conduct of elections in respect of large number of local bodies in the State of Madhya Pradesh, even that is no different. As a matter of fact, the number in this State is quite staggering. The chart handed over to the Court by the learned counsel for the Madhya Pradesh State Election Commission, indicates that there are about 321 urban local bodies, where elections have not been held from 2019-2020. Further, the local bodies at the grassroot level (rural local bodies) where elections have not been held in the same manner are around 23,073, as of now.5. The elections have not been held assumedly for the same reason as in the case of State of Maharashtra, namely, the State has still not been able to complete the triple test formalities as predicated in the decision of this Court in Vikas Kishanrao Gawali Vs. State of Maharashtra (2021) 6 SCC 73 . As a result of which, reservation for Other Backward Classes (OBC) category cannot be provisioned by the State Election Commission. This has happened despite the peremptory directions given by this Court vide successive orders, including dated 03.03.2022. This Court had made it amply clear that conduct of elections to install the newly elected body in the concerned local self-government cannot brook delay, owing to the Constitutional mandate exposited in Article 243-E and 243-U including the provisions in the concerned State Legislation in that regard.6. A somewhat hiatus situation occurs and is permitted only when the dissolution of a local body is necessitated before the expiry of the term of that local body. Else, the term of the local self-government has been 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 by the Constitution Bench of this Court in Kishansing Tomar Vs. Municipal Corporation of the City of Ahmedabad & Ors. (2006) 8 SCC 352 (paras 12 to 14 and 22 to 28, in particular.7. Thus, all concerned are obliged to ensure that the newly elected body is installed in every local body before the expiry of 5 (five) years term of the outgoing elected body. Even in case of dissolution before the expiry of five years period, where an Administrator is required to be appointed by the State, that regime cannot be continued beyond 6 (six) months by virtue of relevant provisions in the respective State Legislation(s).8. This constitutional mandate is inviolable. Neither the State Election Commission nor the State Government or for that matter the State Legislature, including this Court in exercise of powers under Article 142 of the Constitution of India can countenance dispensation to the contrary.9. Despite such constitutional mandate, the reality in the State of Madhya Pradesh as of now, is that, more than 23,263 local bodies are functioning without the elected representatives for last over two years and more. This is bordering on break down of rule of law and more so, palpable infraction of the constitutional mandate qua the existence and functioning of such local selfgovernment, which cannot be countenanced.10. The fact that the State legislature has effected amendments in the concerned enactment(s) authorizing the State Government to determine the number and extent of wards to be constituted in the local bodies within the State also cannot be a tangible or legitimate ground to not notify the election programme within the time-frame specified by the Constitution and the law made by the Legislature in that regard.11. In any case, the ongoing activity of delimitation or formation of ward cannot be a legitimate ground to be set forth by any authority much less the State Election Commission - to not discharge its constitutional obligation in notifying the election programme at the opportune time and to ensure that the elected body is installed before the expiry of 5 (five) years term of the outgoing elected body. If there is need to undertake delimitation - which indeed is a continuous exercise to be undertaken by the concerned authority - it ought to be commenced well-in-advance to ensure that the elections of the concerned local body are notified in time so that the elected body would be able to take over the reigns of its administration without any disruption and continuity of governance (thereby upholding the tenet of Government of the people, by the people and for the people). In other words, the amendment effected to the stated enactments cannot be reckoned as a legitimate ground for protracting the issue of election programme of the concerned local bodies.That cannot be the basis to disregard the constitutional mandate and need to observe triple test procedure indicated by this Court. The political parties who claim to be the protagonist of participation of OBC in the governance of local bodies, are free to nominate candidates belonging to OBC category in the concerned constituencies and even against all the General seats available after reserving for Schedule Castes and Schedule Tribes. We do not wish to dilate any further on the plea under consideration.15. We once again reiterate that the process of delimitation work and/or triple test compliance is a continuous, complex, time consuming and more so without any timeline (directly linked to the expiry of the term of the outgoing elected body). Whereas, the conduct of elections for installing newly elected body to take over the reins from the outgoing elected representative whose term had expired, is explicitly provided for by the Constitution and the relevant enactments. Therefore, the former need not detain the issue of election programme by the State Election Commission, in respect of local bodies as and when it becomes due much less overdue, including where the same is likely to become due in the near future.16. Be it noted that as and when the delimitation exercise or triple test formality, as the case may be, is completed, the elections conducted thereafter may have to abide by such dispensation.17. If the grounds pressed into service by the State authorities were to be accepted, it would be infeasible for any Election Commission - be it Madhya Pradesh State Election Commission - to notify the election programme well-in-time and to ensure that newly elected body is installed before the expiry of 5 (five) years tenure of the outgoing elected body. That would defeat the constitutional mandate and go against the tenet of local selfgovernment by democratically elected representatives, uninterrupted.18. To put it differently, completion of delimitation exercise or be it triple test formality, as the case may be, can wait if not completed well before the expiry of five years term of the outgoing elected body, including giving enough time to the Election Commission to complete the election process within such time. Thus, the declaration of election programme cannot be delayed by the Election Commission on that account. For, it would inevitably result in creating hiatus situation upon expiry of 5 (five) years term of outgoing elected body. Such an eventuality needs to be eschewed by all the duty holders. A priori, it is not only a constitutional obligation of the State Election Commission but also of the State Government including of the constitutional Courts.21. During the course of the argument, our attention was drawn to the First Report dated 05.05.2022 prepared by the Backward Classes Commission constituted by the State Government, as the first step towards the triple test obligation as per the decision of this Court. However, we do not intend to examine the said report or comment upon it in the present proceedings.22. Suffice it to note that mere preparation of the First Report by the stated Commission cannot be regarded as complete compliance of triple test requirement. In one sense, it is an inchoate situation and only a step towards final declaration by the State Government to provide specified just percentage of reservation for OBC category local body wise.23. Mr. Tushar Mehta, learned Solicitor General was at pains to impress upon us that the First Report having been prepared by the Backward Classes Commission appointed by the State dated 05.05.2022, the State Government would now move into action and undertake the remaining steps to notify the seats to be reserved for Other Backward Classes in the concerned local bodies. Prima facie, going by the spirit of the judgment of this Court in Vikas Kishanrao Gawali (supra), even that exercise needs to be undertaken by the especially appointed Commission (dedicated) for that purpose. The report as presented to us has not engaged itself in that exercise which it ought to have done local body wise. Hence, this report in the present form will be of no avail.24. In other words, the exercise of collation of empirical data and after analysis thereof, the Commission is expected to make recommendation regarding the number of seats to be reserved for Other Backward Classes local body wise. Apparently, that exercise has not been undertaken by the Commission. The State Government can act upon 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 of reservation in the context of local self-government is markedly different from that for higher education and public employment, as expounded by the Constitution Bench K. Krishna Murthy (Dr.) & Ors. vs. Union of India & Anr., (2010) 7 SCC 202  [para 82(i)] of this Court.