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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 278 OF 2022

SURESH MAHAJAN …PETITIONERS

VERSUS

STATE OF MADHYA PRADESH & ANR. …RESPONDENTS

J U D G M E N T

A.M. KHANWILKAR, J.

1. This writ petition assails the validity of Section 10(1) of the

Madhya Pradesh Municipal Act, 1956, Sections 12, 23 and 30 of

the Madhya Pradesh Panchayat Raj Avam Gram Swaraj

Adhiniyam, 1993 and Section 29 of the Madhya Pradesh

Municipalities Act, 1961 as being arbitrary and usurping the

powers and independence of the State Election Commission.

2. By stated amendments, the State Government has been

authorized to issue notification from time to time determining the

number and extent of wards to be constituted in the concerned

local bodies. More or less, similar situation obtains in the

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dispensation provided for in the State of Maharashtra, after the

amendment of relevant enactments as noted in our order dated

04.05.2022 passed in SLP(C) No. 19756 of 2021 an d connected

cases.

3. The grounds urged in the present writ petition are similar to

the issues raised and involved in the aforementioned matters

pertaining to State of Maharashtra. This Court vide order dated

04.05.2022 has already noted that deeper exami nation of the

questions raised by the parties will be necessary; and, therefore,

the matters have been ordered to be posted for further hearing. It

is appropriate that even this matter is heard along with the said

group of cases. We order accordingly.

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

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around 23,073, as of now.

5. The elections have not been held assumedly for the same

reason as in the case of State of Maharashtra, namely, the State

has still not been able to complete the triple test formalities as

predicated in the decision of this Court in Vikas Kishanrao

Gawali Vs. State of Maharashtra

1. 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

1 (2021) 6 SCC 73

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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 .

2.

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

2 (2006) 8 SCC 352

(paras 12 to 14 and 22 to 28, in particular)

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of law and more so, palpable infraction of the constitutional

mandate qua the existence and functioning of such local self-

government, which cannot be countenanced.

10. The fact that the State legislature has effected amendments

in the concerned enactment(s) authorizing the State Government

to determine the number and extent of wards to be constituted in

the local bodies within the State also cannot be a tangible or

legitimate ground to not notify the election programme within the

time-frame specified by the Constitution and the law made by the

Legislature in that regard.

11. In any case, the ongoing activity of delimitation or formation

of ward cannot be a legitimate ground to be set forth by any

authority much less the State Election Commission - to not

discharge its constitutional obligation in notifying the election

programme at the opportune time and to ensure that the elected

body is installed before the expiry of 5 (five) years term of the

outgoing elected body. If there is need to undertake delimitation -

which indeed is a continuous exercise to be undertaken by the

concerned authority - it ought to be commenced well-in-advance

to ensure that the elections of the concerned local body are

notified in time so that the elected body would be able to take

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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 force 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 without 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

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duly elected representatives uninterrupted except in case of its

dissolution before expiry of the term on permissible grounds.

13. For, until the triple test formality is completed “in all

respects” by the State Government, no res ervation for Other

Backward Classes can be provisioned; and if that exercise cannot

be completed before the issue of election programme by the State

Election Commission, the seats (except reserved for the

Scheduled Castes and Scheduled Tribes which is a constitutional

requirement), the rest of the seats must be notified as for the

General Category.

14. It was urged that population of OBC in some of the local

bodies is more than 50% and for that reason, percentage

indicated in the report submitted by the C ommission is a

conservative approach and needs to be taken forward. That

cannot be the basis to disregard the constitutional mandate and

need to observe triple test procedure indicated by this Court. The

political parties who claim to be the protagonist of participation

of OBC in the governance of local bodies, are free to nominate

candidates belonging to OBC category in the concerned

constituencies and even against all the General seats available

after reserving for Schedule Castes and Schedule Tribes. We do

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not wish to dilate any further on the plea under consideration.

15. We once again reiterate that the process of delimitation

work and/or triple test compliance is a continuous, complex,

time consuming and more so without any timeline (directly linked

to the expiry of the term of the outgoing elected body). Whereas,

the conduct of elections for installing newly elected body to take

over the reins from the outgoing elected representative whose

term had expired, is explicitly provided for by the Constitution

and the relevant enactments. Therefore, the former need not

detain the issue of election programme by the State Election

Commission, in respect of local bodies as and when it becomes

due much less overdue, including where the same is likely to

become due in the near future.

16. Be it noted that as and when the delimitation exercise or

triple test formality, as the case may be, is completed, the

elections conducted thereafter may have to abide by such

dispensation.

17. If the grounds pressed into service by the State authorities

were to be accepted, it would be infeasible for any Election

Commission - be it Madhya Pradesh State Election Commission -

to notify the election programme well-in-time and to ensure that

newly elected body is installed before the expiry of 5 (five) years

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tenure of the outgoing elected body. That would defeat the

constitutional mandate and go against the tenet of local self-

government by democratically elected representative s,

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 St ate Election Commission to proceed on

notional basis and issue election programme in respect of

concerned local body by reckoning the delimitation/formation of

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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.

20. The State election Commission must do so not later than

two weeks from today. The State Government shall extend

adequate logistical support to the State Election Commission for

accomplishing the task in terms of this order.

21. During the course of the argument, our attention was drawn

to the First Report dated 05.05.2022 prepared by the Backward

Classes Commission constituted by the State Government, as the

first step towards the triple test obligation as per the decision of

this Court. However, we do not intend to examine the said report

or comment upon it in the present proceedings.

22. Suffice it to note that mere preparation of the First Report

by the stated Commission cannot be regarded as complete

compliance of triple test requirement. In one sense, it is an

inchoate situation and only a step towards final declaration by

the State Government to provide specified just percentage of

reservation for OBC category local body wise.

23. Mr. Tushar Mehta, learned Solicitor General was at pains to

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impress upon us that the First Report having been prepared by

the Backward Classes Commission appointed by the State dated

05.05.2022, the State Government would now move into action

and undertake the remaining steps to notify the seats to be

reserved for Other Backward Classes in the concerned local

bodies. Prima facie, going by the spirit of the judgment of this

Court in Vikas Kishanrao Gawali (supra), even that exercise

needs to be undertaken by the especially appointed Commission

(dedicated) for that purpose. The report as presented to us has

not engaged itself in that exercise which it ought to have done

local body wise. Hence, this report in the present form will be of

no avail.

24. In other words, the exercise of collation of empirical data

and after analysis thereof, the Commission is expected to make

recommendation regarding the number of seats to be reserved for

Other Backward Classes “local body wise”. Apparently, that

exercise has not been undertaken by the Commission. The State

Government can act upon only thereafter and as per the

recommendations of the Commission - which is an independent

body created to ensure that there is no over-breadth of such

reservation in the “concerned local body”.

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25. Be it noted by all concerned that the nature and purpose of

reservation in the context of local self-government is markedly

different from that for higher education and public employment,

as expounded by the Constitution Bench

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26. As aforesaid, the State Election Commission need not wait

any further, but shall notify the election programme without any

further delay in respect of local self-government whose election(s)

had become due; and in the present case, as aforesaid, overdue

in respect of 23,263 local bodies across the State of Madhya

Pradesh, as of now.

27. Acceding to the argument set forth on behalf of the State of

Madhya Pradesh would be over -looking and in fact a case of

violation of the successive directions given by this Court to the

State Election Commission to speed up the election process in

respect of local bodies where elections are due/overdue and to

proceed without providing reservation for Other Backward

Classes (but limited to the constitutional reservation for

Scheduled Castes and Scheduled Tribes) until the completion of

triple test formality by the State “in all respects”. As and when,

the formalities of triple test are completed, that can be reckoned

3 K. Krishna Murthy (Dr.) & Ors. vs. Union of India & Anr., (2010) 7 SCC 202 [para

82(i)]

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for future elections to be held thereafter. However, elections

which are already due need not and cannot be delayed on that

count in view of the constitutional mandate.

28. We were also informed by the learned counsel appearing for

the Madhya Pradesh State Election Commission during the

course of arguments that some writ petitions are pending before

the High Court in which interim orders have been passed and

that may come in the way of the State Election Commission to

notify the election programme. In that regard, we make it clear

and also direct that the State Election Commission must abide by

the directions and observations in this order uninfluenced by any

order of the High Court or the Civil Court on the subject of

elections of the concerned local self-government, as the case may

be. If any order passed or to be passed hereafter by the High

Court or the Civil Court in the State of Madhya Pradesh, is in

conflict with the directions given by this Court, the same shall be

deemed to have been superseded in terms of this order and not to

be acted upon without the prior permission of this Court.

29. As requested by Mr. Tushar Mehta, learned Solicitor

General, we place on record that all steps taken by the State

Election Commission and we may add even the State

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Government, on the basis of the directions given in terms of this

order will be subject to the outcome of these proceedings.

30. We once again make it clear that if delimitation is not done

by the State Government in terms of Amendment Act(s) of 2022

or the triple test requirement is completed “in all respects” for

providing reservation to OBC category , the State Election

Commission shall give effect to this order also in respect of

upcoming elections of local bodies which would/had become due

by efflux of time.

31. We also make it clear that this order and directions given

are not limited to the Madhya Pradesh State Election

Commission/State of Madhya Pradesh; and Maharashtra State

Election Commission/State of Maharashtra in terms of a similar

order passed on 04.05.2022, but to all the States/Union

Territories and the respective Election Commission to abide by

the same without fail to uphold the constitutional mandate.

32. List this matter on 12.07.2022, to be heard along with

SLP(C) No. 19756 of 2021.

33. The Madhya Pradesh State Election Commission to file

compliance report in due course.

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34. In case of any difficulty, liberty is granted to the Madhya

Pradesh State Election Commission to apply before the

returnable date so as to ensure that the election programme in

respect of concerned local body is taken forward without any

interruption.

...……………………………J.

(A.M. Khanwilkar)

………………………………J.

(Abhay S. Oka)

………………………………J.

(C.T. Ravikumar)

New Delhi;

May 10, 2022.