IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

HON’BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

AND

HON’BLE SRI JUSTICE R.C. KHULBE

29

TH

JULY , 2022

WRIT PETITION (M/S) No. 1769 OF 2022

Between:

Prashant Chauhan.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

And

WRIT PETITION (M/S) No. 1773 OF 2022

Between:

Rao Afaq Ali.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

And

WRIT PETITION (M/S) No. 17 74 OF 2022

Between:

Abhishek Pal.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

And

WRIT PETITION (M/S) No. 17 85 OF 2022

Between:

Rao Farmood.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

And

WRIT PETITION (M/S) No. 1796 OF 2022

Between:

Aabid Hasan.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

And

WRIT PETITION (M/S) No. 17 97 OF 2022

Between:

Arun Tyagi.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

And

WRIT PETITION (M/S) No. 17 98 OF 2022

Between:

Abad Ali.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

And

WRIT PETITION (M/S) No. 1800 OF 2022

Between:

Masooq Ali.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

And

2

WRIT PETITION (M/S) No. 1802 OF 2022

Between:

Arshad.

…Petitioner

and

State of Uttarakhand and others.

…Respondents

Counsel for the peti tioners in

WPMS No. 1785 of 2022, WPMS

No. 1796 of 2022, WPMS No. 1798

of 2022 and WPMS No. 1802 of

2022.

: Mr. Arvind Vashishtha, the learned

Senior Counsel assisted by Mr. Kaushal

Pandey, the learned counsel

Counsel for the petitioners in

WPMS No. 1769 of 2022, WPMS

No. 1773 of 2022 and WPMS No.

1774 of 2022

:

Mr. Gaurav Singh, the learned counsel.

Counsel for the petitioner in WPMS

No. 1797 of 2022

:

Mr. Prem Kaushal, the learned counsel.

Counsel for the petitioner in WPMS

No. 1800 of 2022.

:

Mr. Amar Murti Shukla, the learned

counsel.

Counsel for the State of

Uttarakhand.

: Mr. Pradeep Joshi and Mr. Anil Kumar

Bisht, the learned Additional Chief

Standing Counsel for the State of

Uttarakhand.

Counsel for the State Election

Commission.

: Mr. Sanjay Bhatt, the learned counsel.

JUDGMENT : (per Sri Vipin Sanghi, C.J.)

In all these writ petitions, there is firstly a

challenge to the order dated 18.11.2021 issued by the

Government of Uttarakhand, Department of Panchayat

on the subject of reservation and allocation of seats in

Gram Panchayats, Kshe ttra Panchayats and District

Panchayat of District Haridwar for the 3 -Tier Panchayati

elections.

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2. The petitioners have further assailed, in their

respective petitions, the subsequent similar orders, all

dated 13.07.2022, whereby actual allocation of the seats

in the Gram/ Kshettra/ District Panchayat have been

made for the reserved categories in terms of the earlier

order dated 18.11.2021.

3. Part-IX of the Constitution, containing Articles

243, 243A to 243-O were inserted into the Constitution

by a Constitution (Seventy-third Amendment) Act, 1992

w.e.f. 24.04.1993. This part deals with the subject of

Panchayats. Article 243B states that there shall be

constituted in every State, Panchayats at the village,

intermediate, and district levels in accordance with the

provisions of Part IX. Article 243C lays down the

composition of the Panchayats. All the seats in the

Panchayat shall be filled by direct election from

territorial constituencies in the Panchayat area. Under

Article 243C(3), the Legislature of a State may, by law,

provide for the representation of the Chairpersons of the

Panchayats. Under Article 243D of the Constitution of

India, seats are required to be reserved for the

Scheduled Castes and Scheduled Tribes in the

Panchayats, and the number of seats so reserved shall

4

bear, as nearly as may be, the same proportion to the

total number of seats to be filled by direct election in

that Panchayat, as the population of the Schedule d

Castes in that Panchayat area , or of the Scheduled

Tribes in that Panchayat area , bears to the total

population of that area and such seats may be allotted

by rotation to different constituencies in a Panchayat.

4. Article 243D(2) states 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. For women, reservation is granted under Article

243D(3), which states 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 Panchayat shall be reserved for

women, and such seats may be allotted by rotation to

different constituencies in a Panchayat.

5. Clause (4) of Article 243(D) states that the

offices of the Chairpersons in the Panchayats at the

village or any other level, shall be reserved for the

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Scheduled Castes the Scheduled Tribes and women in

such manner as the Legislature of a State may, by law,

provide. It further provides that the number of offices of

Chairpersons reserved for the Scheduled Castes and the

Scheduled Tribes in the Panchayats, at each level in any

State, shall bear, as nearly as may be, the same

proportion to the total number of such offices in the

Panchayats at each level, as the population of the

Scheduled Castes in the State , or of the Scheduled

Tribes in the State, bears to the total population of the

State. It further provides that not less than one third of

the total number of offices of Chairpersons in the

Panchayats at each level, shall be reserved for women.

It further provides that the number of offices reserved

under this clause shall be allotted by rotation to different

Panchayats at each level.

6. Clause (6) of Article 243(D) states that

nothing in Part-IX shall prevent the Legislature of a

State from making any provision for reservation of seats

in any Panchayat, or offices of Chairpersons in the

Panchayats, at any level, in favour of backward class of

citizens.

6

7. Article 243E(1) states that every Panchayat,

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.

8. In the State of Uttar Pradesh, the United

Provinces Panchayat Raj Act, 1947, and Uttar Pradesh

Kshettra Panchayat and Zila Panchayat Act, 1961 were

in vogue when the aforesaid constitutional amendment

was made. In the light of said constitutional

amendment vide which Chapter IX was inserted , it

appears that Chapter III- A was inserted in the said U.P

Panchayat Raj Act, 1947 (hereinafter referred to as the

“U.P. Act”) by U.P. Act 09 of 1994.

9. Section 11-A(1) of the U.P. Act states that

there shall be a Pradhan of the Gram Panchayat, who

shall be the Chairperson thereof. Sub-Section (2) of the

said Section states that the State Government shall, by

order, reserve offices of Pradhans for the Scheduled

Castes, the Scheduled Tribes, and the Backward Classes.

It further provides that the number of offices of Pradhan

reserved for the Scheduled Castes, Scheduled Tribes and

the Backward Classes in the State shall bear, as nearly

7

as may be, the same proportion to the total number of

such offices, as the population of the Scheduled Castes

in the State, or the Scheduled Tribes in the State, or the

Backward Classes in the State bears to the total

population of the State. It further provides that the

reservation for the Backward Classes shall not exceed

twenty-seven percent of the total number of offices of

Pradhans. It further provides that if the figure of

population of the Backward Classes is not available, their

population may be determined by carrying out a survey

in the prescribed manner. It further provides that not

less than one-third of the total number of Offices of

Pradhans, reserved under sub-section (2), shall be

reserved for women belonging to the Scheduled Castes,

Scheduled Tribes and the Backward Classes. It further

provides that not less than one-third of the total number

of offices of Pradhans, including the number of offices of

Pradhans reserved under sub -section (3), shall be

reserved for women . The offices of the Pradhans

reserved under Section 11-A shall be allotted by rotation

to different Gram Panchayats, in such order, as may be

prescribed. Under the U.P. Act, the Uttar Pradesh

Panchayat Raj (Reservation and Allotment of Seats and

8

Offices) Rules, 1994 were framed by the State of Uttar

Pradesh (hereinafter referred to as the “U.P. Rules”).

10. The State of Uttarakhand was formed by

virtue of the Uttar Pradesh Reorganisation Act, 2000 on

09.11.2000. By virtue of Section 86 of the U.P.

Reorganisation Act, 2000, the laws in force immediately

before the appointed day, continued to apply to the

State of Uttarakhand. Consequently, the Uttar Pradesh

Panchayat Raj Act, 1947 , and the Rules framed

thereunder continued to govern the field in the State of

Uttarakhand.

11. The Panchayat Raj elections in the State, it

appears, were held after the formation of the State for

the first time in the year 2002; for the second time in

the year 2010, and; for the third time in the year 2015-

16. The reservation to the Scheduled Castes, Scheduled

Tribes and Backward Classes, apart from reservation of

women, were granted in all these Panchayat Raj

elections in accordance with the U.P. Act and the U.P.

Rules.

12. It is not in dispute that so far as the last

election is concerned, reservations were worked out on

9

the basis of the population/ demographic data gathered

during the 2011 General Census, with regard to the

percentage of population in the State , of Scheduled

Castes; Scheduled Tribes of the total population of the

State. So far as Backward Classes are concerned, a

rapid survey was conducted in 2013 to determine the

percentage of Backward Classes in the State.

13. The Legislature of the State of Uttarakhand

framed the Uttarakhand Panchayati Raj Act, 2016

(Uttarakhand Act No. 11 of 2016) on 07.04.2016

(hereinafter referred to as the “Uttarakhand Act”) .

Section 194 of the Uttarakhand Act repealed the Uttar

Pradesh Panchayat Raj Act, 1947 and Uttar Pradesh

Kshettra Panchayat and Zila Panchayat Act, 1961 , as

applicable to the State of Uttarakhand. It further

provided that notwithstanding such repeal, anything

done or any action taken under the said enactment shall

be deemed to have been done or taken under the

corresponding provisions of the Uttarakhand Act.

Section 10A was inserted in the Uttarakhand Act by Act

No. 10 of 2019 w.e.f. 25.07.2019. Section 10A provides

for reservation for the post of Pradhan. Section 10A of

the Uttarakhand Act is similar to Section 11A of the U.P.

10

Act. However, the reservation , for the Backward

Classes, has been capped at 14 percent of the total

number of seats of Pradhan, which, under the U.P. Act,

has been capped at 27 percent.

14. The definition of the expression “ Rules”,

contained in Section 2(35) of the Uttarakhand Act, was

substituted by the Uttarakhand Panchayati Raj (Second

Amendment) Act, 2019 (Uttarakhand Act No. 09 of

2020) on 16.01.2020. Under the amended definition of

“Rules”, the same means “rules made under this Act but

until such rules are not promulgated rules means rules

promulgated under the Uttar Pradesh Panchayati Ra j

Act, 1947 and the Uttar Pradesh Kshettra Panchayat and

Zila Panchayat Act, 1961.”

15. We may now come to the present controversy

raised by the petitioners in these Writ Petitions.

16. The elections to the Panchayats in the District

of Haridwar in the State of Uttarakhand have been due

since December 2020. However, they have not been

held, statedly, on account of the COVID-19 pandemic.

11

17. In Writ Petition (PIL) No. 87 of 2022, we have

passed an order on 05.07.2022, wherein, the learned

counsel for the State Election Commission stated on

instructions before us, that, the process of delimitation

had been completed, and that the process of preparation

of the electoral rolls would take three weeks, and it was

stated that the notification for conduct of elections shall

positively be issued in the first week of August, 2022.

In this regard, the communication of the State Election

Commission to the Secretary, Panchayati Raj

Department dated 04.07.2022 was tendered in Court

and taken on record. This Court had bound down the

State Election Commission to its statement, and directed

the State Election Commission to ensure that there is no

further delay in the conduct of elections. The Court also

directed the State Election Commission to facilitate

issuance of notification by the State Government in light

of the judgment of the Supreme Court in Suresh

Mahajan Vs. State of Madhya Pradesh and Another ,

2022 SCC OnLine SC 589 , and a direction was issued

to the State Government to positively issue the relevant

notification within the said time frame.

12

18. Now, the present batch of writ petitions has

been preferred by the petitioners, primarily, raising a

grievance to the reservation of seats in different

Panchayats of District Haridwar, and to the rotation of

the reserved seats resorted to by the respondents.

19. The primary submission of Mr. Arvind

Vashistha, the learned senior counsel for the petitioners,

is that there is no reliable data available with the State,

on the basis of which the reservation for the reserved

classes, as aforesaid, has been worked out. He submits

that the last General Census was conducted in the year

2011, when, insofar as the Scheduled Castes and

Scheduled Tribes are concerned, the demographic data

was collected. In relation to the Backward Classes, only

a rapid survey was conducted in 2013. He submits that

the Supreme Court, in Vikas Kishanrao Gawali v. The

State Of Maharashtra, 2021 (6) SCC 73 , while

upholding the constitutional validity of Article 243D and

Article 243T of the Constitution, went on the observe

that in relation to the quantum of reservation provided

for the Backward Classes under the State legislations,

the onus lies on the executive to conduct a rigorous

investigation into the pattern of backwardness that acts

13

as a barrier to political participation, which are quite

different from the patterns of disadvantages in the

matter of access to education and employment. It was

left open to the petitioners, or aggrieved party, to

challenge any State legislation enacted in pursuance of

the said constitutional provisions before the High Court.

In particular, learned Senior Counsel has placed reliance

upon paragraph no. 9 of the said judgment in Vikas

Kishanrao Gawali (supra), which reads as under:-

“9. Besides this inviolable quantitative limitation,

the State Authorities are obliged to fulfil other pre-

conditions before reserving seats for OBCs in the local

bodies. The foremost requirement is to collate

adequate materials or documents that could help in

identification of backward classes for the purpose of

reservation by conducting a contemporaneous

rigorous empirical inquiry into the nature and

implications of backwardness in the local bodies

concerned through an independent dedicated

Commission established for that purpose. Thus, the

State legislations cannot simply provide uniform and

rigid quantum of reservation of seats for OBCs in the

local bodies across the State that too without a proper

enquiry into the nature and implications of

backwardness by an independent Commission about

the imperativeness of such reservation. Further, it

cannot be a static arrangement. It must be reviewed

from time to time so as not to violate the principle of

overbreadth of such reservation (which in itself is a

relative concept and is dynamic). Besides, it must be

confined only to the extent it is proportionate and

within the quantitative limitation as is predicated by

the Constitution Bench of this Court.”

20. Thus, the submission of learned senior counsel

is that the order dated 18.11.2021 issued by the State

of Uttarakhand, which proceeds on the General Census

of the year 2011 and on the rapid Survey of 2013 for the

14

Backward Classes Category, is erroneous, and the State

is bound to conduct a fresh survey before proceeding to

determine the extent of reservation to be granted to the

reserved categories for the forthcoming elections. He

submits that on the basis of 2011 General Census, and

the rapid survey, percentages of Scheduled Castes;

Scheduled Tribes, and; Backward Classes have been

worked as 18.76, 2.89, 15.98 % respectively, which is

erroneous, as it is stale.

21. Further submission of learned counsel for the

petitioner is that the Uttarakhand Act was enacted on

07.04.2016. Since the Uttarakhand Act also repealed

the U.P. Act and the Uttar Pradesh Kshettra Panchayat

and Zila Panchayat Act, 1961, consequently, the U.P.

Rules also stood repealed. It was only by way of

amendment, vide Uttarakhand Act No. 09 of 2020, that

the definition of “ Rules” was substituted on 16.01.2020

to mean rules made under the Uttarakhand Act, but until

such rules are not promulgated , rules means rules

promulgated under the U.P. Act and the Uttar Pradesh

Kshettra Panchayat and Zila Panchayat Act, 1961. Thus,

there was a re-adoption of the U.P. Rules – since no

separate Rules have been framed by the State of

15

Uttarakhand under the Uttarakhand Act, on and from

16.01.2020.

22. Learned Senior Counsel submits that, since

the U.P. Rules have been adopted afresh by the State of

Uttarakhand, while applying the policy of rotation, the

forthcoming Panchayat elections in District Haridwar, of

the State of Uttarakhand, cannot be considered as the

fourth election, and should be considered as the first

election.

23. The U.P. Rules provided for allotment of seats

by rotation and allotment of offices by rotation . Rules 4

and 5 read as under :-

“4. Allotment of seats by rotation. (1)

Subject to the provisions of other sub-rules, the seats

reserved in a Gram Panchayat shall be allotted to

different territorial constituencies in the Gram

Panchayat in the following order:-

(a) Women belonging to the Scheduled Tribes;

(b) the Scheduled Tribes;

(c) women belonging to the Scheduled Castes;

(d) the Scheduled Castes;

(e) women belonging to the backward classes;

(f) the backward classes; and

(g) women.

(2) If on the basis of population of the

Scheduled Tribes or of the Scheduled Castes or of the

Backward Classes in a Panchayat area, only one seat

can be re-served for the Scheduled Tribes or for the

Scheduled Castes or for the Backward Classes, as the

case may be, such seat shall go to a woman belonging

16

to the Scheduled Tribes or to the Scheduled Castes or

the Backward Classes, as the case may be.

(3) If on the basis of population in a Panchayat

area, a seat can not be re-served for the Scheduled

Tribes or for Scheduled Castes or for the Backward

Classes, the order mentioned in sub- rule (1) shall be

so adhered to as if there was no reference in it to the

Scheduled Tribes or to the Scheduled Castes or to the

Backward Classes, as the case may be.

(4) The number of seats as provided in Rule 3

shall be allotted to different Territorial Constituencies

on the basis of population in the descending order,

that is, from amongst the territorial constituencies in a

Gram Panchayat, the territorial constituency having

the largest population of the Scheduled Tribes shall be

allot- ted to them, and the territorial constituency

having the largest population of the Scheduled Castes

shall be allotted to them, and the territorial

constituency having the largest population of the

Backward Classes shall be allotted to them, and in the

subsequent election the allotment shall be done in the

aforesaid manner so however that as far as may be,

the territorial constituency allotted in the previous

election to the Scheduled Tribes shall not be allotted to

the Scheduled Tribes, and the territorial constituency

allotted to the Scheduled Castes shall not be allotted

to the Scheduled Castes and the territorial

constituency allotted to the Backward Classes shall not

be allotted to the Backward Classes:

Provided that if in any election, the population of

the Scheduled Tribes, or of the Scheduled Castes or of

the Backward Classes can not be ascertained territo-

rial constituency-wise, the descending order may be

determined on the basis of number of families in the

territorial constituencies, of the Scheduled Tribes, or of

the Scheduled Castes or of the Backward Classes, as

the case may be.

(5) Not less than one-third of the territorial

constituencies allotted to the Scheduled Tribes, the

Scheduled Castes or the Backward Classes under Sub-

rule (4) shall be allotted to the women belonging to

the Scheduled Tribes, the Sched-uled Castes or the

Backward Classes, as the case may be.

(6) Not less than one-third of the territorial

constituencies remaining after al-lotment under Sub-

rule (4) shall be allotted to women, so however that

the terri- torial constituencies having the largest

population excluding the population of the Scheduled

Tribes, the Scheduled Castes and the Backward

Classes shall be allot-ted to them and in the

subsequent election the allotment shall be made in the

aforesaid manner so however that the territorial

17

constituencies allotted to women in the previous

election shall not be allotted to women.

5. Allotment of offices by rotation.-(1)

The number of offices of Pradhans as provided in Rule

3 for the Scheduled Tribes, the Scheduled Castes and

the Backward Classes shall be distributed Khand-wise

for being allotted to the con-stituent Gram Panchayats

so, however, that the number of offices of Pradhans

for the Scheduled Tribes, the Scheduled Castes, and

the Backward Classes for the constituent Gram

Panchayats shall bear, as nearly as may be, the same

proportion to the number of offices of Pradhans as

provided in Rule 3 as the population of the Scheduled

Tribes in the Khand or of the Scheduled Castes in the

Khand or of the Backward Classes in the Khand bears

to the total population of the Scheduled Tribes in the

State, or to the total population of the Scheduled

Castes in the State or to the total population of the

Backward Classes in the State, as the case may be.

(2) The number of offices of Pradhan for the

Scheduled Tribes, the Sched- uled Castes and the

Backward Classes as determined under sub -rule (1)

shall be allotted to different Gram Panchayats in the

Khand on the basis of the ratio of their population in

the Panchayat area to the total population of the

Panchayat area, in the descending order, that is, from

amongst the Gram Panchayats in the Khand. The

Gram Panchayat in whose territorial area the ratio of

population of the Scheduled Tribes is highest shall be

allotted to them, and the Gram Panchayat in whose

territorial area the ratio of population of the Scheduled

Castes is highest shall be allotted to them, and the

Gram Panchayat in whose territorial area the ratio of

population of the Backward Classes is highest shall be

allotted to them and in the subsequent election the

allotment shall be made in the aforesaid man-ner, so,

however, that as far as may be, the Gram Panchayat

allotted in the previ- ous election to the Scheduled

Tribes, shall not be allotted to the Scheduled Tribes,

and the Gram Panchayat allotted to the Scheduled

Castes shall not be al-lotted to the Scheduled Castes

and the Gram Panchayat allotted to the Backward

Classes shall not be allotted to the Backward Classes:

Provided that if the population of the Scheduled

Tribes or the Scheduled Castes or Backward Classes in

the Panchayat area is less than two, the office of

Pradhan of the Gram Panchayat fo r such Panchayat

area shall not be allotted to the Scheduled Tribes, the

Scheduled Castes or the Backward classes, as the case

may be.

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(3) Not less than one -third of the Gram

Panchayats allotted to the Scheduled Tribes, the

Scheduled Castes or the Backward Classes under sub-

rule (2) shall be allotted to the women belonging to

the Scheduled Tribes, the Scheduled Castes or the

Backward Classes, as the case may be.

(4) Not less than one -third of the Gram

Panchayats remaining after allotment under sub- rule

(2) shall be allotted to women so however that the

territorial areas of the Gram Panchayats allotted to

them have the largest population, excluding the

population of the Scheduled Tribes, the Scheduled

Castes and the Backward Classes, and in the

subsequent election the allotment shall be done in the

afore-said manner so however that the Gram

Panchayat allotted to women in the previ-ous election

shall not be allowed to women.

(5) The provisions of sub-rules (1), (2) and (3)

of Rule 4 shall mutatis mu -tandis apply to the

allotments of offices of Pradhan and this rule.

24. Having heard Mr. Arvind Vashistha, the

learned Senior Counsel for the petitioners; Mr. Pradeep

Joshi, the learned Additional Chief Standing Counsel for

the State of Uttarakhand, and; Mr. Sa njay Bhatt, the

learned counsel for the State Election Commission, we

find no merit in the present Writ Petitions, and we are

inclined to dismiss the same.

25. There can be no manner of doubt that the

State is obliged to collect and collate contemporaneous

data, and conduct an inquiry into the nature and

implications of backwardness in the local bodies

concerned through an independent dedicated

Commission established for that purpose , for the

19

purpose of reservation of seats for the Backward

Classes. As observed by the Supreme Court in Vikas

Kishanrao Gawali (supra), the percentage of

reservation of seats for the Backward Classes cannot be

static, and it must be reviewed from time to time, so as

not to violate the principle of overbreadth of reservation.

26. However, the even more important question

is, whether, the elections of the Gram Panchayats, which

have been due since the year 2020 , can be allowed to

be stalled merely because, either, the circumstances

have not permitted the collection of contempor aneous

data, or, the State has failed in carrying out the exercise

of collection of demographic data in time?

27. Under Article 243E of the Constitution, and

Section 12 of the Uttarakhand Act, every Gram

Panchayat, unless sooner dissolved, shall continue for

five years from the date fixed of its first meeting and

“no longer”. Thus, the Constitutional intent and the

intent of the State Legislature was clear, that the tenure

of the Gram Panchayat, and every member of the Gram

Panchayat, shall be five years from the date fixed for its

first meeting, and no more. In our view, merely

because contemporaneous data, with regard to the

20

Other Backward Classes, has not been collected since

2013 in the State, it is no ground to defer the allocation

and rotation of seats, and the same has to be made on

the basis of the last general census and rapid survey

conducted in the State in 2011 and 2013 respectively.

28. If the aforesaid submission of the petitioners

were to be accepted, it would be very easy for one or

the other party, to put a spanner in the wheels and stall

the election process, despite the term of the erstwhile

Panchayat having come to an end , and despite the

Constitutional and legislative intent being very clear,

that the said term and tenure of the Panchayat , and the

elected representatives in the Panchayat, is fixed for five

years, and no more. In this regard, we may also rely on

the observations made by the Supreme Court in Suresh

Mahajan (supra). It reads as follows :-

“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

21

to complete the triple test formalities as predicated in

the decision of this Court in Vikas Kishanrao Gawali Vs.

State of Maharashtra1. 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.

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

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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.

12. Therefore, we direct the State Election Commission

by way of interim order, to issue election programme

without any further delay on the basis of the wards as

per the delimitation done in the concerned local bodies

when the elections had become due consequent to

expiry of 5 (five) years term of the outgoing elected

body or before coming into f orce of the impugned

Amendment Act(s) whichever is later. On that notional

basis, the State Election Commission ought to proceed

without any exception in respect of concerned local

bodies where elections are due or likely to be due in

the near future witho ut waiting even for the

compliance of triple test by the State Government for

providing reservation to Other Backward Classes. We

have no manner of doubt that only such direction

would meet the ends of justice and larger public

interests consistent with the constitutional mandate

that the local self-government must be governed by

the duly elected representatives uninterrupted except

in case of its dissolution before expiry of the term on

permissible grounds.

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

23

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 self-government 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.

19. In view of the above, we have no hesitation in

directing the Madhya Pradesh State Election

Commission to proceed on notional basis and issue

election programme in respect of concerned local body

by reckoning the delimitation/formation of wards

thereof as on the date when the election of the

concerned local body had “in fact” become due or

before coming into force of the (impugned)

Amendment Act, which is under -challenge before this

Court in the present proceedings, whichever is later.”

29. Learned Senior Counsel for the petitioners

submits that the State has now constituted a

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Commission to examine the aspect of backwardness of

the Backward Classes. As observed by the Supreme

Court, this is a continuing exercise, and cannot be a

reason to violate the Constitutional mandate of holding

of Panchayat elections every five years. Permitting such

like objections to be raised would gravely undermine the

constitutional goal of establishing local self-governance

at the Gram Panchayat levels. We, therefore, reject the

first argument raised by the learned Senior Counsel for

the petitioners, premised upon the observations made

by the Supreme Court in Vikas Kishanrao Gawali

(supra).

30. The second submission of the learned Senior

Counsel for the petitioners also does not appeal to us.

This is for the reason that the first three elections to the

Gram Panchayats were held in the State when the U.P.

Act, the Uttar Pradesh Kshettra Panchayat and Zila

Panchayat Act, 1961, and the U.P. Rules were in vogue

and applicable to the State of Uttarakhand.

31. The Uttarakhand Act came into force on

07.04.2016. Even though it repealed, vide Section 194,

the U.P. Act and the Uttar Pradesh Kshettra Panchayat

and Zila Panchayat Act, 1961, it further provided that

25

“notwithstanding such repeal, anything done, or any

action taken under the said enactment, shall be deemed

to have been done or taken under the corresponding

provisions of this Act ”. Thus, the three prior elections to

the Gram Panchayat, held in the years 2002, 2010 and

2015-16, are deemed to have been held under the

corresponding provisions of the Uttarakhand Act.

32. The submission of the learned Senior Counsel

for the petitioners, that, since the U.P. Rules were re-

adopted on 16.01.2020, by amendment and substitution

of the definition of the expression “ Rules” contained in

Section 2(35) of the Uttarakhand Act, the forthcoming

Gram Panchayat elections should be treated as the first

election, has no force and basis.

33. The earlier three elections, held in the State of

Uttarakhand, have been held by applying the policy of

rotation of the reserved seats. Those elections cannot

be wished away. Moreover, Section 24 of the Uttar

Pradesh General Clauses Act, 1904, which is also

applicable to the State of Uttarakhand, also has the

effect of maintaining continuity of the actions taken by

virtue of orders issued under the U.P. Rules.

26

34. For the aforesaid reasons, we do not find any

merit in the present Writ Petitions and dismiss the same,

leaving the parties to bear their respective costs.

35. In sequel thereto, all pending applications also

stand disposed of.

___________ _____

VIPIN SANGHI , C.J.

_____________

R.C. KHULBE, J.

Dt: 29

th

July, 2022

Rahul

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