High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA.

CWP No. 975 of 2017

Reserved on: 26.5.2017.

Decided on: 29

th May, 2017

Raju Thakur …Petitioner.

Versus

State Election Commission and others …Respondents.

___________________________________________________________________

Coram:

Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?

1 Yes

For the Petitioner: Mr. B.C. Negi, Senior Advocate, with Mr.

Nitin Thakur, Advocate.

For the Respondents: Mr. Dilip Sharma, Senior Advocate, with

Ms. Nishi Goel, Advocate, for respondents

No. 1 and 2.

Mr. Shrawan Dogra, Advocate General, with

Mr. Anup Rattan, Mr. V.S. Chauhan,

Additional Advocate Generals, Mr. Kush

Sharma and Mr. Puneet Rajta, Deputy

Advocate Generals, for respondent No.3.

_________________________________________________________

Justice Tarlok Singh Chauhan, Judge:

Aggrieved by the order passed by respondent No.1 on

9.5.2017 (Annexure P-2) whereby the elections to the Shimla

Municipal Corporation have been postponed, the petitioner

has filed the instant writ petition for the following

substantive reliefs:

“i) Issue a writ of certiorari to quash Annexure P-2 i.e.

office order dated 09.05.2017.

1

Whether reporters of the local papers may be allowed to see the judgment? yes

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 2

ii) Issue a writ of mandamus directing the respondent

authorities not to implement Annexure P-2 i.e. office

order dated 09.05.2017.

iii) Issue a writ of mandamus directing the respondent

authorities to conduct election on time and to constitute

a duly elected Shimla Municipal Corporation on or

before 04.06.2017.

iv) Issue a writ of mandamus directing the concerned

authorities to initiate appropriate necessary

disciplinary proceedings against erring officials and

qua removal of the present incumbent heading

respondent No.1.”

Certain undisputed facts may be noticed.

2. The previous elections to Municipal Corporation,

Shimla were held in May, 2012 and the Municipal

Corporation was constituted on 4.6.2012 with a term of five

years which admittedly is due to expire on 4.6.2017, on

which date a new elected body is required to be constituted

as per the mandate of law.

3. This position is not even disputed by respondent

No.1, who in its reply has admitted that the term of the

Municipal Corporation is going to expire on 4.6.2017 .

However, it is submitted that the Deputy Commissioner,

Shimla in the capacity of Electoral Registration Officer

(respondent No.2) vide letter dated 30.3.2017 was asked by

respondent No.1 to get the draft electoral rolls verified. The

schedule for the preparation of electoral rolls was also

issued and sent vide letter dated 11.4.2017. This exercise of

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 3

verification of the electoral rolls was started by respondent

No.2 and thereafter even the draft electoral rolls were

published on 11.4.2017 for calling objections. However, a

very large number of complaints were received regarding

errors in such rolls not only from the various political

parties like Bhartiya Janta Party (BJP), Communist Party of

India (Marxist) (CPM) (Annexures R-1/3 and R-1/4), but

even the Municipal Corporation had passed unanimous

resolution (Annexure R-1/5) requesting that the date for

filing objections and suggestions be extended. In the

meanwhile, this Court also in its order dated 27.4.2017 in

CWP No. 815 of 2017 directed the acceptance of complaints

on Sunday the 30

th

April, 2017 and on Monday the 1

st

May,

2017. This direction was fully carried out and it was still

expected that the polls would be held timely.

4. The respondent No.2 completed the process and

even published the final electoral rolls on 5.5.2017.

However, the political parties as also certain interested

persons were still not satisfied with the final electoral rolls

and again made numerous complaints annexed with the

reply as Annexures R-1/7 to R-1/14. Discrepancies in the

electoral rolls were even highlighted by the print media.

Thus, it became absolutely clear that there were still errors

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 4

in the electoral rolls and efforts to correct them in time had

not succeeded.

5. It was with a view to check this situation that

the Election Commission of India (office of the Chief

Electoral Officer, H.P.) was requested vide letter dated

5.5.2017 to intimate the office of respondent No.1 the total

number of voters enrolled in Legislative Assembly segments

relatable to the area of Municipal Corporation, Shimla. The

Chief Electoral Officer informed that total number of such

electors as per their record as on 1.1.2017 was 85,546 and

it appeared that this was much lower than the number of

voters published in the electoral rolls for the Shimla

Municipal Corporation on 5.5.2017 which was 88,167.

6. It was further averred that while some difference

always remains, yet in the instant case the difference was

substantial and moreover, 2200 applicati ons were still

pending decision. Therefore, taking into consideration the

entirety of the facts and circumstances, respondent No.1

issued order dated 9.5.2017 (Annexure P-2) with a view to

ensure that the elections are conducted in a free and fair

manner as is expected of respondent No.1 and the same

reads thus:

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 5

“ MUNICIPAL CORPORATION

ELECTIONS

STATE ELECTION COMMISSION HIMACHAL PRADESH

No. SEC-13-96/2017-III-764 dated the 9

th May, 2017.

ORDER

Whereas this Commission had directed the Electoral

Registration Officer-cum-Deputy Commissioner, Shimla

district, to undertake the process for preparation of electoral

rolls of the Municipal Corporation Shimla vide Notification

No. SEC-13-96/2017-III-568-79 dated 11

th April, 2017.

And whereas the Electoral Registration Officer-cum-

Deputy Commissioner, Shimla district had prepared and

notified the electoral rolls of Municipal Corporation Shimla on

5.5.2017, which shows the number of the electors as 88167.

As this appeared on the higher side, the Chief Electoral

Officer, H.P. (which is an office of Election Commission of

India) was requested to inform the number of electors in the

Legislative Assembly Constituency areas relatable to the

Municipal Corporation Shimla. The CEO, HP had on

05.05.2017 informed the total number of electors enrolled by

them was 85546 for the Municipal Corporation area.

Considering that both the electoral rolls were prepared with

reference to the same qualifying date i.e. 01.01.2017, the

difference was on the higher side. Though some difference

always occurs, but this difference is substantial, keeping in

mind that further around 2200 applications were still

pending with the Revising Authorities. A report was

accordingly sought from the ERO-cum-Deputy Commissioner

Shimla district.

And whereas the ERO -cum-Deputy Commissioner

Shimla vide letter No. SML-LFA-Election(300)/2017-2033

dated 08

th May, 2017 has reported inter-alia that the some

areas which falls under Gram Panchayat(s) had got included

inadvertently.

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 6

And whereas this Commission has also received

many complaints from political parties, the

Mayor/Councilors of Municipal Corporation Shimla and the

public regarding discrepancies in the electoral rolls such as

that the electors are not appearing in the relevant wards,

address of the electors is incomplete, names of many eligible

electors have been left out and many persons have got

included in the electoral rolls who are not so entitled.

Keeping in view the above, the Commission has

reached the conclusion that in the interest of fair and smooth

elections, it will be appropriate to correct the electoral rolls.

Therefore, the State Election Commission, in exercise of the

powers vested in it under Article 243ZA of the Constitution of

India, Section 9 of the Hima chal Pradesh Municipal

Corporation Act, 1994 read with Rule 24 of the Himachal

Pradesh Municipal Corporation Election Rules, 2012 hereby

directs special revision of the electoral rolls of Municipal

Corporation Shimla as per following programme:-

Sr.No. Exercise to be undertaken Period

1. Verification of electors already

enrolled in the final electoral rolls

and receipt of claims and

objections by the Revising

Authorities.

15.05.2017

To

24.05.2017

2, Preparation of list of voters whose

names are pr oposed for

addition/deletion/correction.

24.05.2017

To

29.05.2017

3. Service of notices to such electors

by the Revising Authorities.

30.05.2017

To

03.06.2017

4. Disposal of cases by the Revising

Authorities.

05.06.2017

To

12.06.2017

5. Appeal by the aggrieved

voters to the ERO-cum-Deputy

Commissioner Shimla.

Within three days from

the passing of order by

Revising Authorities.

6. Disposal of appeals. Within three days from

the filing of appeals.

7. Preparation of supplementary

lists-II and insertion of corrections

23.06.2017.

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 7

in the finally published electoral

rolls.

By Order

State Election Commissioner

Himachal Pradesh.”

7. It was after the incorporation of Part IXA in the

Constitution of India vide 74

th

Amendment Act, which came

into force from 1.6.1993 that the municipalities as

institution of self governance were given the constitutional

status.

8. For adjudication of this lis, it is Article 243U of

the Constitution of India that is of utmost importance and

reads thus:

“243U. 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).

(3) An election to constitute a Municipality shall be completed

-

(a) before the expiry of its duration specified in

clause (1 );

(b) before the expiration of a period of six months

from the date of its dissolution:

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 8

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 leave continued

under, clause (1) had it not been so dissolved.”

9. Section 5 of the Himachal Pradesh Municipal

Corporation Act, 1994 prescribes the duration of Municipal

Corporation and reads thus:

“5. Duration of Corporation .- (1) The

Corporation, unless sooner dissolved under section

404 of this Act, shall continue for five years from the

date appointed for its first meeting.

(2) An election to constitute the Corporation shall be

completed -

(a) before the expiry of its duration specified in

sub-section (1);

(b) before the expiration of a period of six

months from the date of its dissolution :

Provided that where the remainder of the

period for which the dissolved 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.

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 9

(3) A Corporation constituted upon its dissolution

before the expiration of its duration shall continue

only for the remainder of the period for which the

dissolved Corporation would have continued under

sub-section (1) had it not been so dissolved.”

10. Section 9 of the Himachal Pradesh Municipal

Corporation Act, relates to the Election to the Corporation

and reads thus:

“9. Election to the Corporation. --(1) The

superintendence, direction and control of the

preparation of electoral rolls, delimitation of wards,

reservation and allotment of seats by rotation for,

and the conduct of all elections of the Corporation,

shall be vested in the State Election Commission.

(2) The Government as well as the Corporation

shall, when so requested by the State Election

Commission, make available to the Commission

such staff [material and monetary resources] as

may be necessary for the discharge of the functions

conferred on the State Election Commission by sub-

section (1).

(3) The Commission shall frame its own rules and

lay down its own procedure.”

11. The superintendence, direction and control of

the preparation of electoral rolls, delimitation of wards,

reservation and allotment of seats by rotation for, and the

conduct of all elections to the Municipalities, are vested in

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 10

the State Election Commission referred to in Article 243K,

subject to the provisions of the Constitution, the Legislature

of a State has been conferred with power to make provision

with respect to all matters relating to, or in connection with,

elections to the Municipalities as would be evident from

Article 243ZA of the Constitution, which reads thus:

“243ZA. Elections to the Municipalities.- (1) The

superintendence, direction and control of the

preparation of electoral rolls for, and the conduct of,

all elections to the Municipalities shall be vested in

the State Election Commission referred to in Article

243K.

(2) Subject to the provisions of this Constitution, the

Legislature of a State may, by law, make provision

with respect to all matters relating to, or in connection

with, elections to the Municipalities.

12. The State Legislature in furtherance to Part IXA

of the Constitution has incorporated the Municipal

Corporation Act, 1994 and Municipal Corporation Election

Rules, 2012. Chapter-II therein deals with Delimitation and

Reservation of Wards, Chapter IV deals with Electoral Rolls,

Chapter VI deals with conduct of elections and Chapter VIII

deals with counting of votes and declaration of results.

13. For the adjudication of this petition, the

provisions relevant are contained in Rules 22, 23, 24 and

33, which read thus:

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 11

“22. Disposal of claims and objections: (1) On the date,

time and place fixed under the provisions of rule 20, the

Revising Authority shall hear and decide within 10 days

or such shorter period as may be specified by the

Commission the claims and objections under the provisions

of these rules, and shall record his decision in the registers

in Forms 7, 8 and 9 as the case may be.

(2) Copy of the order relating to the objection shall be given

on payment of Rs.15/- to the claimant against receipt and

objector immediately, if he is present. Otherwise he can get

the copy of the same on payment of Rs.25/- in cash against

receipt.

(3) Any person aggrieved by an order passed under the

provisions of sub-rule (1), may, within 3 days from the date

of the order, file an appeal to Electoral Registration

Officer, who shall as far as practicable, within a week,

decide the same.

(4) If it appears to the Electoral Registration Officer that

due to inadvertence or error during the preparation of draft

Electoral rolls, names of electors have been left out of the

Electoral roll or the names of dead persons or persons who

ceased to be or are not ordinarily resident in the ward or

part thereof have been included in the Electoral roll or

certain voters have been shown in the wrong ward or

polling station and that remedial action is required to be

taken under this sub-rule, shall within seven days from

the date of publication of draft Electoral roll –

(a) prepare a list of the name and other particulars

of such electors;

(b) exhibit on the notice board of his office a copy

of the list together with a notice as to the

date(s) and place(s) at which the matter of

inclusion of the names in Electoral roll or

deletion of the names from the Electoral roll

shall be considered; and

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 12

( c) after considering any verbal or written

objection that may be preferred, decide

whether all or any of the names may be

included in or deleted from the Electoral roll.

(23) Final publication of Electoral roll . – (1) The

Revising Authority as soon as it has disposed of all the

claims or objections presented to it, shall forward the same

alongwith the register of such claims or objections and the

orders passed by it thereon to the Electoral Registration

Officer, who shall cause the Electoral roll to be corrected in

accordance with such orders or the orders passed on appeal

by him under sub-rule (3) of rule 22 and corrections

consequential to sub-rule (4) of rule 22, as the case may

be, and shall publish the final Electoral roll, on a date

fixed by the Commission by making a complete copy

thereof available for inspection and display a notice thereof

in Form-17 in his office and also in the offices of the

Corporation and the Tehsil concerned.

(2) On such publication, the Electoral roll with or without

amendments shall be the electoral roll of the ward or part

thereof and shall come into force from the date of its

publication under this rule.

(24) Special Revision of Electoral rolls. –

Notwithstanding anything contained in rule 23, the

Commission may at any time, for the reasons to be recorded,

direct a special revision for any ward or part thereof in such

a manner as it may think fit:

Provided that, subject to, other provisions of these

rules, the Electoral rolls for the wards or part thereof as in

force at the time of the issue of any such directions shall

continue to be in force until the completion of the special

revision, so directed.

(33) Election Programme. – (1) the State Election

Commissioner shall frame a programme of general elections

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 13

of the Corporation or a programme to fill up any casual

vacancy in a Corporation or hold election to a Corporation

which has been dissolved (hereinafter referred to as

“election programme”).

(2) The election programme shall specify the date or dates

on, by, or within which –

(i) the nomination papers shall be presented;

(ii) the nomination papers shall be scrutinized:

(iii) a candidate may withdraw his candidature:

(iv) the list of contesting candidates shall be affixed;

(v) the list of polling stations shall be pasted:

(vi) the poll, if necessary shall be held on………..from

…….A.M. to …….P.M. (the hours of poll shall not be

less than six hours).

(vii) the counting in the event of poll, shall be done

……. (here time and place fixed for the purpose

shall also be specified); and

(viii) the result of the election shall be declared.

(3) The election programme shall be published seven days

before the date of filing of nomination papers by pasting a

copy at the office of the Deputy Commissioner, Tehsil and

Corporation and at such other conspicuous places in the

Corporation as may be determined by the Deputy

Commissioner in this behalf.

(4) The period for filing of nomination papers shall be three

working days and the date of scrutiny shall be the next

working day from the last date of filing of nomination

papers. The date of withdrawal shall be the third working

day from the date of scrutiny. The date for affixing the list of

contesting candidates shall be the same as fixed for

withdrawal of candidature. The list of polling stations shall

be published approximately one month before the date of

poll or on a date as may be specified by the Commission.

The gap between the date of withdrawal and the date of poll

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 14

shall atleast be ten days and the day of poll shall preferably

be a Sunday or any gazetted holiday.

(5) The Commission may be an order amend, vary or modify

the election programme.

Provided that unless the Commission otherwise

directs, no such order shall be deemed to invalidate any

proceedings taken before the date of the order.”

14. It would be noticed that the provisions of the

local statutes as have been reproduced above, in fact, only

follow what has otherwise been provided for by Article 243,

more particularly Article 243U. Therefore, it is the

interpretation of Article 243U, upon which the entire

adjudication of the instant lis hinges.

15. Having set-out the relevant provisions of law, we

would now deal with the rival contentions of learned counsel

for the parties.

16. Mr. B.C. Negi, Senior Advocate, assisted by

Mr. Nitin Thakur, Advocate, learned counsel for the

petitioner would vehemently argue that the order dated

9.5.2017 (Annexure P-2) cannot withstand judicial scrutiny

as it has been issued in violation of the provisions of Article

243U of the Constitution as interpreted by the

Constitutional Bench of the Hon’ble Supreme Court in

Kishansing Tomar vs. Municipal Corporation of the City

of Ahmedabad and others (2006) 8 SCC 352. While, on

the other hand, Mr. Shrawan Dogra, learned Advocate

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 15

General, assisted by Mr. V.S. Chauhan, learned Additional

Advocate General would vehemently argue that it was on

account of bonafide reasons as already set out hereinabove

that the respondent No.1 was compelled to postpone the

elections or else the same could not have been held in a free

and fair manner as many of the electors would have been

deprived of their right of franchise and vote to elect their

representatives.

We have heard learned counsel for the parties and

have gone through the material placed on record.

17. At the outset, we may notice that the petitioner

has not raised or levelled directly or indirectly or even

tactically any allegations of malafide and, therefore, we

would presume that the impugned order was issued

bonafidely.

18. However, nonetheless the question that still

remains open for consideration is whether the action of the

respondents conforms to the law laid down in Kishansing

Tomar’s case (supra).

19. In order to appreciate this point, it would be

necessary to first refer to the decision itself.

20. Kishansing Tomar was the Chairman of the

Standing Committee of the Ahmedabad Municipal

Corporation, to which the elected body was constituted for

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 16

the relevant period pursuant to an election held in October,

2000 and its term was due to expire on 15.10.2005. He

apprehended that the authorities may delay the process of

election to constitute the new municipal body and therefore

filed a writ petition before the Gujarat High Court on

23.8.2005. The Ahmedabad Municipal Corporation filed an

affidavit before the High Court stating that it was the

responsibility of 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 Corporation

Act, 1949, the State Government had issued a notification

on 8.6.2005 determining the wards for the city of

Ahmedabad by which the total number of wards had been

increased from 43 to 45 and therefore, 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 and Allocation of Reserved

Seats) 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

months time for completing the process of election and the

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 17

Commission could act only after the State Government

issued the notification. The State Government produced a

chart showing the detailed steps taken by the State

Government at various stages culminating in the issue of

notification dated 8.6.2005.

21. Kishansing Tomar contended before the learned

Single Judge that in view of Article 243U 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.

However, 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.

22. Aggrieved by the decision of the learned Single

Judge, Sh. Kishansing Tomar filed LPA before the High

Court and the learned Division Bench of the High Court

upheld the order passed by learned Single Judge and

further 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

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 18

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

was dismissed.

23. It was in this background that Kishansing

Tomar approached the Hon’ble Supreme Court wherein the

main thrust of his argument was that in view of various

provisions contained in Part IXA 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. Whereas, the case of the State Election

Commission was that every effort was made by it 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.

24. The Hon’ble Supreme Court after setting out in

detail the relevant provisions of the Constitution of India

contained in Articles 243U, 243ZA, 243S and 243T as also

the provisions of the Bombay Provincial Municipal

Corporations Act, 1949 held as under:

“12. 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

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 19

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.

Having regard to these inadequacies, it is considered

necessary that provisions relating to urban local

bodies are incorporated in the Constitution,

particularly for :

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 20

(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 ---

** ** ** **

(f) fixed tenure of 5 years for the Municipality

and re- election within a period of six

months of its dissolution."

13. 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

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 21

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.

14. 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.

15. 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

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 22

provisions of Article 243-U could not be complied with

stricto sensu.

16. 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.

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 23

17. Speaking for the Bench, Justice Khare, as he

then was, in paragraph 79 of the Answer to the

Reference, held : (SCC p.288)

“79.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…..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."

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 24

18. Concurring with the fo regoing opinion,

Pasayat, J. in paragraph 151, stated as follows :

(SCC p.322)

"151. 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

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 25

certainly would be against the scheme of the

Constitution and the basic structure to that

extent shall be corroded."

19. 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.

20. 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

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 26

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.

21. It is true that there may be certain man-made

calamities, 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.

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 27

22. 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.”

(underlining supplied by us).

25. Incidentally, both the parties have relied upon

the aforesaid decision and would interpret it in a manner as

would best serve them. It is here that the theory of

precedents and binding effect of decision assumes

significance.

26. It is more than settled that it is the ratio of a

case which is applicable and not what logically flows

therefrom. A case is only an authority for what it actually

decides and not logically flows from it. Observations of court

are not to be read as Euclid’s theorems nor as provisions of

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 28

the statutes. These observations must be read in the context

in which they appear and judgments of courts are not to be

construed as statutes.

27. On the subject of precedents Lord Halsbury,

L.C., said in Quinn vs. Leathem, 1901 AC 495 :

“Now before discussing the case of Allen Vs. Flood

(1898) AC1 and what was decided therein, there are

two observations of a general character which I wish

to make, and one is to repeat what I have very often

said before, that every judgment must be read as

applicable to the particular facts proved or assumed

to be proved, since the generality of the expressions

which may be found there are not intended to be

expositions of the whole law, but are governed and

qualified by the particular facts of the case in which

such expressions are to be found. The other is that a

case is only an authority for what it actually decides.

I entirely deny that it can be quoted for a proposition

that may seem to follow logically from it. Such a mode

of reasoning assumes that the law is necessarily a

logical Code, whereas every lawyer must

acknowledge that the law is not always logical at all.”

28. Lord Mac Dermot in London Graving Dock Co.

Ltd. V. Horton (1951 AC 737 at P.761), observed:

“The matter cannot, of course, be settled merely by

treating the ipsissima vertra of Willes, J. as though

they were part of an Act of Parliament and applying

the rules of interpretation appropriate thereto. This is

not to detract from the great weight to be given to the

language actually used by that most distinguished

Judge.”

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 29

29. Lord Reid in Home Office. V. Dorset Yatch Co.

(1970 (2) All ER 294) said:

“Lord Atkin’s speech..is not to be treated as if it was

a statute definition. It will require qualification in new

circumstances.” Megarry, J. in (1971) 1 WLR 1062

observed: “One must not, of course, construe even a

reserved judgment of even Russell L.J. as if it were an

Act of Parliament.”

30. Lord Morris in Herrington v. British Railways

Board, (1972) 2 WLR 537 said:

“There is always peril in treating the words of a

speech or judgment as though they are worlds in a

legislative enactment, and it is to be remembered that

judicial utterances made in the setting of the facts of

a particular case.”

31. The following words of Lord Denning in the

matter of applying precedents have become locus classicus.

“Each case depends on its own facts and a clo se

similarity between one case and another is not

enough because even a single significant detail may

alter the entire aspect. In deciding such cases, one

should avoid the temptation to decide cases (as said

by Cordozo) by matching the colour of one case

against the colour of another. To decide, therefore, on

which side of the line a case falls, the broad

resemblance to another case is not at all decisive.”

xxx xxx xxx “Precedent should be followed only so far

as it marks the path of justice, but you must cut the

dead wood and trim off the side branches else you

will find yourself lost in thickets and branches. My

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 30

plea is to keep the path to justice clear of obstructions

which could impede it.”

32. In Ambica Quarry Works v. State of Gujarat

and others (1987) 1 SCC 213, the Hon’ble Supreme Court

held that the ratio of any decision must be understood in

the background of the facts of that case. Relying on Quinn

v. Leathem (1901) AC 495, it has been held that the case is

only an authority for what it actually decides, and not what

logically flows from it.

33. In Krishena Kumar v. Union of India and

others (1990) 4 SCC 207 , the Constitution Bench of the

Hon’ble Supreme Court while dealing with the concept of

ratio decidendi, has referred to Caledonian Railway Co. v.

Walker’s Trustees (1882) 7 App Cas 259:46 LT 826 (HL)

and Quinn (supra) and the observations made by Sir

Frederick Pollock and thereafter proceeded to state as

follows:-

“The ratio decidendi is the underlying principle,

namely, the general reasons or the general grounds

upon which the decision is based on the test or

abstract from the specific peculiarities of the

particular case which gives rise to the decision. The

ratio decidendi has to be ascertained by an analysis

of the facts of the case and the process of reasoning

involving the major premise consisting of a pre -

existing rule of law, either statutory or judge-made,

and a minor premise consisting of the material facts

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 31

of the case under immediate consideration. If it is not

clear, it is not the duty of the court to spell it out with

difficulty in order to be bound by it. In the words of

Halsbury (4

th edn., Vol.26, para 573).”

“The concrete decision alone is binding between the

parties to it but it is the abstract ratio decidendi, as

ascertained on a consideration of the judgment in

relation to the subject matter of the decision, which

alone has the force of law and which when it is clear

it is not part of a tribunal’s duty to spell out with

difficulty a ratio decidendi in order to bound by it, and

it is always dangerous to take one or two

observations out of a long judgment and treat them as

if they gave the ratio decidendi of the case. If more

reasons than one are given by a tribunal for its

judgment, all are taken as forming the ratio

decidendi.” (Emphasis added)

34. In Islamic Academy of Education v. State of

Karnataka (2003) 6 SCC 697 , the Hon’ble Supreme Court

has made the following observations:-

“2.....The ratio decidendi of a judgment has to be

found out only on reading the entire judgment. Infact,

the ratio of the judgment is what is set out in the

judgment itself. The answer to the question would

necessarily have to be read in the context of what is

set out in the judgment and not in isolation. In case of

any doubt as regards any observations, reasons and

principles, the other part of the judgment has to be

looked into. By reading a line here and there from the

judgment, one cannot find out the entire ratio

decidendi of the judgment.”

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 32

35. In Union of India v. Amrit Lal Manchanda and

another (2004) 3 SCC 75, it has been stated by the Hon’ble

Supreme Court that observations of courts are neither to be

read as Euclid’s theorems nor as provisions of the statute

and that too taken out of their context. The observations

must be read in the context in which they appear to have

been stated. To interpret words, phrases and provisions of a

statute, it may become necessary for judges to embark into

lengthy discussions but the discussion is meant to explain

and not to define. Judges interpret statutes, they do not

interpret judgments. They interpret words of statutes; their

words are not to be interpreted as statutes.

36. In State of Orissa v. Mohd. Illiyas (2006) 1

SCC 275, it has been stated by the Hon’ble Supreme Court

thus:-

“12......According to the well-settled theory of

precedents, every decision contains three basic

postulates: (i) findings of material facts, direct and

inferential. An inferential finding of facts is the

inference which the Judge draws from the direct, or

perceptible facts; (ii) statements of the principles of

law applicable to the legal problems disclosed by the

facts; and (iii) judgment based on the combined effect

of the above. A decision is an authority for what it

actually decides. What is of the essence in a decision

is its ratio and not every observation found therein

nor what logically flows from the various observations

made in the judgment.”

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 33

37. In Oriental Insurance Co. Ltd. Vs. Smt. Raj

Kumari and Ors.; 2007 (13) SCALE 113 , the well known

proposition, namely, it is ratio of a case which is applicable

and not what logically flows therefrom is enunciated in a

lucid manner by the Hon’ble Supreme Court and it was

observed thus:

“10.Relinace on the decision without looking to the

factual background of the case before it is clearly

impermissible. A decision is a precedent on its own

facts. Each case presents its own features. It is not

everything said by a Judge while giving a judgment

that constitutes a precedent. The only thing in a

Judge’s decision binding a party is the principle upon

which the case is decided and for this reason it is

important to analyse a decision and isolate from it the

ratio decidendi. According to the well-settled theory of

precedents, every decision contains three basic

postulates –(i) findings of material facts, direct and

inferential. An inferential finding of facts is the

inference which the Judge draws from the direct,” or

perceptible facts; (ii) statements of the principles of

law applicable to the legal problems disclosed by the

facts; and (iii) judgment based on the combined effect

of the above. A decision is an, authority for what it

actually decides. What is of the essence in a decision

is its ratio and not every observation found therein

nor what logically flows from the various observations

made in the judgment. The enunciation of the reason

or principle on which a question before a Court has

been decided is alone binding as a precedent.

(See:State of Orissa v. Sudhansu Sekhar Misra and

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 34

Ors. (1970) ILLJ 662 SC and Union of India and Ors.

V. Dhanwanti Devi and Ors. (1966) 6 SCC 44. A case

is a precedent and binding for what it explicitly

decides and no more. The words used by Judges in

their judgments are not to be read as if they are

words in Act of Parliament. In Quinn v. Leathern

(1901) AC 495 (H.L.), Earl of Halsbury LC observed

that every judgment must be read as applicable to the

particular facts proved or assumed to be proved, since

the generality of the expressions which are found

there are not intended to be exposition of the whole

law but governed and qualified by the particular facts

of the case in wich such expressions are found and a

case is only an authority for what it actually decides.”

38. In Som Mittal v. Government of Karnataka

(2008) 3 SCC 574 the Hon’ble Supreme Court observed that

judgments are not to be construed as statutes. Nor words or

phrases in judgments to be interpreted like provisions of a

statute. Some words used in a judgment should be read and

understood contextually and are not intended to be taken

literally. Many a time a judge uses a phrase or expression

with the intention of emphasizing a point or accentuating a

principle or even by way of a flourish of writing style.

39. Ratio decidendi of a judgment is not to be

discerned from a stray word or phrase read in isolation (See:

Arasmeta Captive Power Company Private Limited and

another v. Lafarge India Private Limited AIR 2014 SC

525.)

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 35

40. Now, adverting to the judgment in Kishansing

Tomar’s case (supra), it would be noticed that the Hon’ble

Supreme Court has categorically observed therein that the

very purpose of inserting Part IXA in the Constitution by

introducing various provisions as per 74

th Amendment Act,

1992 was that in many States the local bodies were not

working properly and even the timely elections were not

being held and the nominated bodies were continuing for

long periods. Even the 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.

41. The Hon’ble Supreme Court also took into

consideration the Statement of Objects and Reasons in the

Constitution Amendment Bill relating to urban local bodies

wherein it was recognised that the local bodies in many

States had become weak and ineffective on account of a

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 were not able to perform effectively as vibrant

democratic units of self-Government. One of the object for

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 36

introducing the aforesaid provision was to ensuring the

regular conduct of elections.

42. In paragraph 14 of the aforesaid judgment, it

has been specifically observed by the Hon’ble Supreme

Court that duration of the Municipality is fixed as five years

from the date of its first meeting and no longer and 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 243U.

43. It would further be noticed that a contention

had been putforth by the respondent therein before the

Hon’ble Supreme Court that due to multifarious reasons,

the State Election Commission may not be in a position to

conduct the elections in time and there could be instances

where the provisions of Article 243-U like the case before the

Hon’ble Supreme Court cannot be complied with stricto

sensu.

44. The Hon’ble Supreme Court after considering

the contention in light of the earlier Constitution Bench

judgment in Special Reference No.1 of 2002 in (2002) 8 SCC

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 37

237, held that State Election Commission, should not put

forward any excuse based on unreasonable grounds that the

election should not be completed in time rather the Election

Commission should 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 should 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. It was further

clarified that the Election Commission should complete the

election process within the aforesaid time and not yield to

situations that may be created by ves ted interests to

postpone elections from being held within the stipulated

time.

45. Learned Advocate General would vehemently

argue that the Hon’ble Supreme Court in paragraph 19 of

its report has categorically observed that the State Election

Commission should not put forward any excuse based on

unreasonable grounds that the elections are not being

postponed by taking into consideration the certain vested

interests. Whereas, this is not the fact situation obtaining in

the instant case as the elections have been postponed for

reasons that are genuine and bonafide and not even doubted

by the petitioner.

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 38

46. No doubt, the submission of the learned

Advocate General appears to be attractive, however, in light

of the Constitution Bench judgment of the Hon’ble Supreme

Court in Kishansing Tomar’s case (supra), we are unable

to accede to his submission. The Hon’ble Supreme Court

has in Kishansing Tomar’s case (supra) in no uncertain

terms makes it clear that it is only in case of certain

activities 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 ( sic other)

circumstances would the Election Commission be justified

in delaying the process of election after consulting the State

Government and other authorities. It has further clarified

that even this should be an exceptional circumstance and

should not be a regular feature to extend the duration of the

municipality. Not only this, it has thereafter unequivocally

held that 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.

47. Reference in this regard can conveniently be

made to para 21 of the report which though already stands

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 39

extracted above, but we still deem it proper to reproduce the

same herein also and the same reads thus:

“21. It is true that there may be certain man-made

calamities, 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.”

48. Notably, the judgment rendered in Kishansing

Tomar’s case (supra) was subject matter of consideration

before three Judges of the Hon’ble Supreme Court in

K.B.Nagur, M.D. (Ayurvedic) vs. Union of India (2012) 4

SCC 483 and the ratio laid down therein (Kishansing

Tomar’s) case (supra) was culled out in the following

manner:

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 40

“ 33. In Kishansing Tomar (supra), this Court while

dealing with the question of revision of electoral rolls

by the State Election Commission, noticed that the

Election Commission shall complete the election

before the expiration of the duration of five years'

period as stipulated in Clause (9) of Article 243-U of

the Constitution and not yield to situations that may

be created by vested interests to postpone elections

beyond the stipulated time. The State Election

Commission shall take steps to prepare the electoral

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

should be done in a timely manner an d in no

circumstances, shall the elections be delayed so as to

cause gross violation of the mandatory provisions

contained in Article 243U of the Constitution.

34. Further, while drawing a distinction between

severe man-made calamities such as rioting,

breakdown of law and order or natural calamities,

which could distract the authorities from holding

elections to the Municipality and other reasons for

delay, this Court noted that the former are exceptional

circumstances and under no other circumstance

would the Election Commission be justified in

delaying the process of election after consulting the

State Government and other authorities. This Court

laid significant emphasis on the independence of the

State Election Commission and expected all other

authorities to fully cooperate, and in default, granted

liberty to the State Election Commission to approach

the High Court and/or the Supreme Court, as the case

may be for relief/directions. However, no final or

time-bound directions were issued, in the petition

above-referred, because election to the Ahmedabad

Municipal Corporation in that case had already been

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 41

held in the meanwhile.”

(underlining supplied by us).

49. The aforesaid exposition of law culled out from

the decision in Kishansing Tomar’s case (supra) makes it

evidently clear that while drawing a distinction between

certain man-made calamities, such as rioting or breakdown

of law and order, or natural calamities which could distract

the authorities from holding elections to the Municipality

and other reasons for delay, the Hon’ble Supreme Court had

noted that former are exceptional circumstances and under

no other circumstance would the Election Commission be

justified in delaying the process of election.

50. Indubitably, the exercise of special revision of

electoral rolls as is being undertaken by respondent No.1

does not fall within the former category so as to entitle it to

postpone the elections. The provisions contained in Article

243U of the Constitution, makes it absolutely 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.

51. Once the ratio of the aforesaid judgment is

absolutely clear, then judicial comity, discipline,

concomitance, pragmatism, poignantly point, per force to

observe constitutional propriety and adhere to the decision

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 42

rendered by the Hon’ble Supreme Court in Kishansing

Tomar’s case (supra).

52. Judicial discipline requires decorum known to

law which warrants that appellate directions should be

followed in the hierarchical system of court which exists

in this country. It is necessary for each lower tier to

accept loyally the decisions of the higher tier. After all, the

judicial system only works if someone is allowed to have

the last word, and if that last word once spoken is loyally

accepted. Therefore, we cannot deduce any other ratio of

what was decided in Kishansing Tomar’s case (supra) in

view of the judgment s ubsequently rendered by the

Hon’ble Supreme Court in K.B.Nagur’s case (supra).

53. The exercise now being undertaken by

respondent No.1 for revision of the electoral rolls cannot rest

the process of election and should have been done timely.

For it is incumbent upon respondent No.1 and other

respondents to carry out the mandate of the Constitution

and to see and ensure that a new Municipality is constituted

in time and election to the Municipality are conducted before

the expiry of its duration of five years as specified in Clause

(1) of Article 243 (4). The revision of electoral rolls was

required to be carried out in time by the respondents and if

they have not been carried out within the time frame, then

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 43

the election has to be conducted on the basis of the existing

electoral rolls.

54. In view of the above discussion, the action of the

respondents in postponing the election, even though

presumed to be bonafide, cannot be countenanced or upheld

as the same is contrary to the Constitutional mandate of

Article 243U as interpreted by the Constitution Bench of the

Hon’ble Supreme Court in Kishansing Tomar’s case

(supra) and thereafter re-affirmed in K.B.Nagur’s case

(supra). Accordingly, the order passed by respondent No.1

on 9.5.2017 (Annexure P-2) is quashed and set-aside.

55. However, even after coming to the aforesaid

conclusion we cannot accede to the third prayer made by

the petitioner for constituting a duly elected Municipal

Corporation on or before 4.6.2017 in view of the provisions

contained in the Municipal Corporation Election Rules,

2012, more particularly Rule 33 thereof which provides for

the election programme.

56. It is more than settled that legal formulations

cannot be enforced divorced from the realities of the fact

situation of the case. Situations without precedent demand

remedies without precedent. The extra-ordinary situation

may call for extra-ordinary response and situational

demands.

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 44

57. Therefore, in the peculiar facts and

circumstances of the case we feel that the following

directions shall subserve the ends of justice:

(i) The respondent No.1 shall forthwith and no

later than 24 hours of the receipt of this

judgment frame a programme for general

elections of the Municipal Corporation and take

all consequential action so as to ensure that the

elections are held no later than 18.6.2017, even

if this calls for some deviation of Rule 33

(supra).

(ii) The respondents shall ensure that the new body

of duly elected representatives of the

Corporation is constituted latest by 19.6.2017.

(iii) The election shall be conducted on the basis of

the final electoral rolls published on 05.05.2017

subject to the proviso as contained in Rule 25 of

the Himachal Pradesh Municipal Corporation

Election Rules, 2012, which reads thus:

“25. Correction of ent ries in Electoral

rolls.- If the Electoral Registration Officer

on an application in Form-6 or in Form-18

made to him, or on his own motion, is,

satisfied, after such inquiry as he thinks fit,

that any entry in the Electoral roll –

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 45

(a) is erroneous or defective in any

particular;

(b) should be deleted on the ground that

the person concerned is dead or has

ceased to be ordinarily resident or is

otherwise not entitled to be

registered in that Election roll, he

shall amend or delete the entry:

Provided that before taking any action

on any ground under clause (a) or clause (b),

the Electoral Registration Officer shall give the

person concerned a reasonable opportunity of

being heard in respect of the action proposed to

be taken in relation to him:

Provided further that an application

under this rule at any time after the publication

of the election programme under rule 33 shall

be made to the Electoral Registration

Officer not later than 8 days before the last

date fixed for the filing of nomination papers.”

(iv) The elected and nominated body of the existing

Municipal Corporation shall not be permitted to

be in office after 4.6.2017 and it shall further be

the duty and responsibility of the State

Government to put in place a proper mechanism

so as to ensure that the working of the

Corporation does not suffer on account of

implementation of this judgment.

However, before parting, it is made clear that this

judgment shall not be treated as a precedent.

::: Downloaded on - 08/10/2022 10:17:19 :::CIS

High Court of H.P. 46

58. The petition is disposed of in the aforesaid

terms. The parties are left to bear their own costs. Pending

application(s) if any, stands disposed of.

An authenticated copy of this judgment be supplied to

respondent No.1 forthwith by the Court Master.

Tarlok Singh Chauhan),

Judge

(Chander Bhusan Barowalia)

29

th

May, 2017 Judge

(GR)

::: Downloaded on - 08/10/2022 10:17:19 :::CIS