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CASE NO.:

Appeal (civil) 5756 of 2005

PETITIONER:

Kishansing Tomar

RESPONDENT:

Municipal Corporation of the City of Amedabad & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH:

CJI, K.G. Balakrishnan & S.H. Kapadia C.K. Thakkar P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

K.G. BALAKRISHNAN, J.

This appeal is directed against the judgment of the

Division Bench of the High Court of Gujarat. The appellant

filed a Special Civil Application No. 9847 of 2005 praying for

a writ of mandamus or any other appropriate writ or direction

to the respondents in the writ petition, namely, the Municipal

Corporation of the City of Ahmedabad, the State of Gujarat

and the Gujarat State Election Commission, to take all steps

necessary for the purpose of holding elections for constituting

the Municipal Corporation of the city of Ahmedabad before

the expiry of the duration of the Municipal Corporation

constituted pursuant to the elections held in October, 2000.

The appellant, who was the writ petitioner before the High

Court, was the Chairman of the Standing Committee of the

Ahmedabad Municipal Corporation (hereinafter referred to as

"AMC"). The elected body of the AMC was constituted for the

relevant period pursuant to an election held in October, 2000

and its term was due to expire on October 15, 2005. The

appellant apprehended that the authorities may delay the

process of election to constitute the new Municipal body and

therefore filed the aforesaid writ petition on 23rd August,

2005. The AMC filed an affidavit before the High Court

stating that it was the responsibility of the third respondent,

namely, the State Election Commission, to conduct the

elections in time. The State Election Commission, in a

separate affidavit in reply, submitted that under the

provisions of the Bombay Provincial Municipal Corporations

Act, 1949, the State Govt. had issued a Notification on 8th

June, 2005 determining the wards for the city of Ahmedabad

by which the total number of wards had been increased from

43 to 45 and in view of the increase in the number of wards,

the Commission was required to proceed with the exercise of

delimitation of the wards of the city of Ahmedabad in

accordance with the provisions of the Bombay Provincial

Municipal Corporation (Delimitation of Wards in the City &

Allocation of Reserved Seats) Rules, 1994 and that the

Commission had issued a circular requiring the Collectors

and the Designated Officers to furnish the details and to

make proposals for delimitation of the wards. The

Commission contended that it would take two months' time to

complete the process of delimitation as the preparation of

voters' list in each ward had to be revised in accordance with

the Bombay Provincial Municipal Corporation (Registration of

Voters) Rules, 1994. It was alleged by the Commission that it

was required to consult the political parties to carry out the

delimitation of the wards and that it would take at least six

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months' time for completing the process of election and the

Commission could act only after the State Govt. issued the

notification. The State Govt. produced a chart showing the

detailed steps taken by the State Govt. at various stages

culminating in the issue of Notification dated 8th June, 2005.

The appellant contended before the Single Judge that in

view of Article 243-U of the Constitution, the authorities were

bound to complete the process at the earliest and the elections

should have been held before the expiry of the term of the

existing Municipal Corporation. The learned Single Judge

accepted the timeframe suggested by the State Election

Commission and directed that it should be strictly followed

and the process of elections must be completed by 31st

December, 2005, and that no further extension for holding

the elections would be permissible.

Aggrieved by the decision of the Single Judge, the

appellant filed a Letters Patent Appeal before the High Court

and the Division Bench of the High Court by the impugned

judgment held that the timeframe given by the State Election

Commission was perfectly justified and the Election

Commission was directed to begin and complete process as

per the dates given in its affidavit and the L.P.A. was

dismissed. Aggrieved thereby, the present appeal is

preferred before us by the appellant.

We heard appellant's counsel as also the counsel for the

respondents. The main thrust of the arguments of the

appellant's counsel was that in view of the various provisions

contained in Part IX of the Constitution of India, it was

incumbent on the part of the authorities to complete the

process of election before the expiry of the period of five years

from the date appointed for first meeting of the Municipality.

The counsel for the respondents, especially the counsel for the

State Election Commission contended that every effort was

made by the Election Commission to conduct the elections

before the stipulated time, but due to unavoidable reasons,

the elections could not be held and the preparation of the

electoral rolls and the increase in the number of wards had

caused delay in the process of election and under such

circumstances the delay was justified in conducting the

elections.

The question that arises for consideration is whether

Article 243-U of the Constitution, by which the duration of

the Municipality is fixed is mandatory in nature and any

violation could be justified in the circumstances stated by the

respondents. Article 243-U of the Constitution reads as

follows :

"243-U. 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 level, which is functioning

immediately before such amendment, till the

expiration of its duration specified in clause (1).

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(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 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."

Article 243-ZA 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 a State Election Commission referred to in Article

243-K.

Article 243-S states that there shall be constituted

Wards' Committees consisting of one or more wards, within

the territorial area of a Municipality having a population of

three lakhs or more and that the State Legislature may by

law make provision with respect to (a) the composition and the

territorial area of a Wards Committee; and (b) the manner in

which the seats in a Wards Committee shall be filled.

Under Article 243-T, it is provided that the 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 to the total population of that area and such seats

may be allotted by rotation to different constituencies in a

Municipality. Further clause (2) of Article 243-T says that

not less than one third of the total number of seats reserved

under clause (1) shall be reserved for women belonging to the

Scheduled Castes or, as the case may be, the Scheduled

Tribes. Clause (3) of this Article further provides that not less

than one third (including the number of seats reserved for

women belonging to the Scheduled Castes and the Scheduled

Tribes) of the total number of seats to be filled by direct

election in every Municipality shall be reserved for women and

such seats may be allotted by rotation to different

constituencies in a Municipality. Clause (6) empowers the

State Legislature to make any provision for reservation of seats

in any Municipality or offices of Chairpersons in the

Municipalities in favour of backward class of citizens.

The provisions contained in the Bombay Provincial

Municipal Corporations Act, 1949 also are relevant to be noted

here. Section 6 of this Act deals with the duration of a

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corporation. It reads as under :

"6. Duration of Corporation :

(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 reads as under :

"6A. Terms office of Councillors :

The term of the office of the Councillors shall be co-

extensive with the duration of the corporation."

Section 6B is to the following effect :

"Election to Constitute the Corporation :

An election to constitute a corporation shall be

completed\027

(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 for

constituting the Corporation for such period."

It may be noted that Part IX-A was inserted in the

Constitution by virtue of the Seventy Fourth Amendment Act,

1992. The object of introducing these provisions was 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 self-Government.

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Having regard to these inadequacies, it is

considered necessary that provisions relating to

urban local bodies are incorporated in the

Constitution, particularly for \026

(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 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 ---

\005\005\005\005\005\005\005

(f) fixed tenure of 5 years for the Municipality and re-

election within a period of six months of its dissolution."

The effect of Article 243-U 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 243-U 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 243-U 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 Sub-clause (3) Article 243-U that in case of

dissolution, 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 243-U 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.

So, in any case, the duration of the Municipality is fixed

as five years from the date of its first meeting and no longer.

It is incumbent upon the Election Commission and other

authorities to carry out the mandate of the Constitution and

to see that a new Municipality is constituted in time and

elections to the Municipality are conducted before the expiry of

its duration of five years as specified in Clause (1) of Article

243-U.

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The counsel for the respondents contended that due to

multifarious reasons, the State Election Commission may not

be in a position to conduct the elections in time and under

such circumstances the provisions of Article 243-U could not

be complied with stricto sensu.

A similar question came up before the Constitution

Bench of this Court in Special Reference No. 1 of 2002 with

reference to the Gujarat Assembly Elections matter. The

Legislative Assembly of the State of Gujarat was dissolved

before the expiration of its normal duration. Article 174(1) of

the Constitution provides that six months shall not intervene

between the last sitting of the Legislative Assembly in one

session and the date appointed for its first sitting in the next

session and the Election Commission had also noted that the

mandate of Article 174 would require that the Assembly

should meet every six months even after dissolution of the

House and that the Election Commission had all along been

consistent that normally a Legislative Assembly should meet

at least every six months as contemplated by Article 174 even

where it has been dissolved. As the last sitting of the

Legislative Assembly of the State of Gujarat was held on

3.4.2002, the Election Commission, by its order dated

16.8.2002, had not recommended any date for holding

general election for constituting a new Legislative Assembly

for the State of Gujarat and observed that the Commission will

consider framing a suitable schedule for the general election to

the State Assembly in November-December, 2002 and

therefore the mandate of Article 174(1) of the Constitution of

India to constitute a new Legislative Assembly cannot be

carried out. The Reference, thus, came up before this Court.

Speaking for the Bench, Justice Khare, as he then was,

in paragraph 79 of the Answer to the Reference, held :

"However, we are of the view that the employment of

the words "on an expiration" occurring in Sections

14 and 15 of the Representation of the People Act,

1951 respectively show that the Election

Commission is required to take steps for holding

election immediately on expiration of the term of the

Assembly or its dissolution, although no period has

been provided for. Yet, there is another indication

in Sections 14 and 15 of the Representation of

People Act that the election process can be set in

motion by issuing of notification prior to expiry of

six months of the normal term of the House of the

People or Legislative Assembly. Clause (1) of

Article 172 provides that while promulgation of

emergency is in operation, Parliament by law can

extend the duration of the Legislative Assembly not

exceeding one year at a time and this period shall

not, in any case, extend beyond a period of six

months after promulgation has ceased to operate.

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The aforesaid provisions do indicate that on the

premature dissolution of the Legislative Assembly,

the Election Commission is required to initiate

immediate steps for holding election for constituting

Legislative Assembly on the first occasion and in

any case within six months from the date of

premature dissolution of the Legislative Assembly."

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Concurring with the foregoing opinion, Pasayat, J. in

paragraph 151, stated as follows :

"The impossibility of holding the election is not a

factor against the Election Commission. The maxim

of law impotentia excusat legem is intimately

connected with another maxim of law lex no cogit

ad impossibilia. Impotentia excusat legem is that

when there is a necessary or invincible disability to

perform the mandatory part of the law that

impotentia excuses. The law does not compel one

to do that which one cannot possibly perform.

"Where the law creates a duty or charge, and the

party is disabled to perform it, without any default

in him." Therefore, when it appears that the

performance of the formalities prescribed by a

statute has been rendered impossible by

circumstances over which the persons interested

had no control, like an act of God, the

circumstances will be taken as a valid excuse.

Where the act of God prevents the compliance with

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. (See Broom's Legal Maxims, 10th Ed., at pp

1962-63 and Craies on Statue Law, 6th Edn., p.

268.) These aspects were highlighted by this Court

in Special Reference No. 1 of 1974. Situations may

be created by interested persons to see that

elections do not take place and the caretaker

Government continues in office. This certainly

would be against the scheme of the Constitution

and the basic structure to that extent shall be

corroded."

From the opinion thus expressed by this Court, it is clear

that the State Election Commission shall not put forward any

excuse based on unreasonable grounds that the election could

not be completed in time. The Election Commission shall try

to complete the election before the expiration of the duration of

five years' period as stipulated in Clause (5). Any revision of

electoral rolls shall be carried out in time and if it cannot be

carried out within a reasonable time, the election has to be

conducted on the basis of the then existing electoral rolls. In

other words, the Election Commission shall complete the

election before the expiration of the duration of five years'

period as stipulated in Clause (5) and not yield to situations

that may be created by vested interests to postpone elections

from being held within the stipulated time.

The majority opinion in Lakshmi Charan Sen & Ors. Vs.

A.K.M. Hassan Uzzaman & Ors. (1985) 4 SCC 689 held that

the fact that certain claims and objections are not finally

disposed of while preparing the electoral rolls or even

assuming that they are not filed in accordance with law

cannot arrest the process of election to the Legislature. The

election has to be held on the basis of the electoral rolls which

are in force on the last date for making nomination. It is true

that Election Commission shall take steps to prepare the

electoral rolls by following due process of law, but that too,

should be done timely and in no circumstances, it shall be

delayed so as to cause gross violation of the mandatory

provisions contained in Article 243-U of the Constitution.

It is true that there may be certain man-made calamities,

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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 243-U, 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.

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 the

Election Commission of India.

In terms of Article 243 K and Article 243 ZA (1) the same

powers are vested in the State Election Commission as the

Election Commission of India under Article 324. The words in

the former provisions are in pari materia with the latter

provision.

The words, 'superintendence, direction and control' as

well as 'conduct of elections' have been held in the "broadest of

terms" by this Court in several decisions including in Re :

Special Reference No. 1 of 2002 (2002) 8 SCC 237 and

Mohinder Singh Gill's case (1978) 1 SCC 405 and the

question is whether this is equally relevant in respect of the

powers of the State Election Commission as well.

From the reading of the said provisions it is clear that the

powers of the State Election Commission in respect of conduct

of elections is no less than that of the Election Commission of

India in their respective domains. These powers are, of

course, subject to the law made by Parliament or by State

Legislatures provided the same do not encroach upon the

plenary powers of the said Election Commissions.

The State Election Commissions are to function

independent of the concerned State Governments in the

matter of their powers of superintendence, direction and

control of all elections and preparation of electoral rolls for,

and the conduct of, all elections to the Panchayats and

Municipalities.

Article 243 K (3) also recognizes the independent status

of the State Election Commission. It states that upon a

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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

co-operation 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.

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.

Taking into account these factors and applying the

principles of golden rule of interpretation, the object and

purpose of Article 243-U is to be carried out.

As the elections to the Ahmedabad Municipal

Corporation have already been held and the new Municipal

body constituted, no further direction is required in the

matter. With these observations, we dispose of the appeal

with no order as to costs.