Ajeet Jaiswal vs State Of U.P. Thru The Princ.Secy. ...
2011 Latest Caselaw 5250 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										    AFR
 
										Reserved
 
	Civil Misc. Writ Petition No. 53557 of 2011.
 
Ajeet Jaiswal.						.........	Petitioner.
 
					Versus 
 
State of U.P. and another.				.........	Respondents.
 
				       ---------

Connected with:

Civil Misc. Writ Petition No. 55520 of 2011.

Niraj Kumar Mishra and others. ......... Petitioners.

Versus

State of Uttar Pradesh and others. ......... Respondents.

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Present:

(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice V.K. Mathur)

Appearance:

For the Petitioner/s : Mr. Keshari Nath Tripathi, Sr.Advocate,

Mr. Naveen Sinha, Sr. Advocate,

Mr. Ved Byas Mishra,

Mr. Neeraj Tripathi,

Mr. Prabhas Pandey.

For the Respondents : Mr. J.N. Mathur,

Additional Advocate General,

Mr. M.C. Chaturvedi,

Chief Standing Counsel,

Mr. Ramanand Pandey,

Standing Counsel, &

Mr. S.K. Singh.

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Amitava Lala, J.-- These writ petitions are connected with each other as they relate to holding of forthcoming elections of Municipalities and/or Municipal Corporations in the State of Uttar Pradesh. In Civil Misc. Writ Petition No. 53557 of 2011 (in short called as the ''first writ petition') when the relief is sought for commanding the respondents to hold election of Municipalities before 15th of November, 2011 within the time prescribed, irrespective of completion of Census-2011 but as per Census-2001, which is now existing, in Civil Misc. Writ Petition No. 55520 of 2011 (in short called as the ''second writ petition') the relief has been similarly sought for but subject to availability of ward-wise and caste-wise, particularly in connection with Scheduled Castes, Scheduled Tribes and Other Backward Classes, census figure of 2011 and delimitation by the State. Conflicting stand between two group of petitioners and the common submission of the State respondents are briefly narrated hereunder.

According to the petitioner in the first writ petition, last Municipal Election was held on 02nd November, 2006. First meeting of the elected bodies of respective Municipalities and Municipal Corporations in the State were held on different dates between 15th November, 2006 and December, 2006 respectively. Therefore, next election should be held within five years from the date appointed for first meeting of the respective elected bodies. Moreover, last census was made in the year 2001. Current census of the year 2011 is still going on. Admittedly, notification has been issued with regard to recent census in early part of the year 2011, but till date nothing has happened. Therefore, the election is liable to be held within time on the basis of the census of 2001, following the constitutional mandate.

On the other hand, submissions of the petitioners in the second writ petition are that census process has already taken effect awaiting final publication, if any. Population between 2001 and 2011 has enormously increased. Therefore, subject to that final publication within a shortest possible time, holding of elections of the Municipal Bodies can be notified. Since protection of interest of the Scheduled Castes and Scheduled Tribes is also a constitutional mandate, unless the recent census is published and delimitation is effected by the State, proper representation of the people, especially of Scheduled Castes and Scheduled Tribes, can not be made.

According to the State, census is in the hands of the Union of India as per the Census Act, 1948 (in short called as the ''Census Act') as well as the Census Rules, 1990 (in short called as the ''Census Rules'). There was no dearth of endeavour on the part of the State in expediting the matter. The Union of India, being responsible, has not been made party respondent. In effect, the State is in a fix which constitutional mandate is to be discharged at first.

As we have understood, the census will be carried out by the Union of India through the individual State machinery. Delimitation of the constituencies in holding the elections of Municipal Bodies will be made by the State when the electoral rolls will be prepared by the State Election Commission. So far as census is concerned, Mr. J.N. Mathur, learned Additional Advocate General, has contended before us that normally census is being taken after a gap of ten years from the last census but there is no such specific rule, regulation or Government order in connection thereto. We have gone through the Census Rules as made under Section 18 of the Census Act and found from Rule 11 thereunder as follows:

"11. Disposal of census schedules and other connected papers.-- The schedules and other connected papers shall be disposed of totally or in part by the Director of Census Operations a year before the next census in accordance with the general or special directions as may be given by the Census Commissioner in this behalf."

Therefore, our understanding is that if last census was completed in the year 2001 and as per normal practice ten years gap is being maintained, then for taking census of 2011 disposal of census schedules and other connected papers will be completed in 2010. Thus, when Census-2011 is notified in early part of year 2011, it will be presupposed that provision of Rule 11 has been complied with and by now leaving aside formality of publication, if any, all other formalities are complete. Mr. Mathur has further contended that as per the Census Rules, there is no question of publication of notification with regard to census operation as such but as per Rule 7 thereof the census data may be released by the Census Commissioner, to which Mr. Keshari Nath Tripathi, learned Senior Counsel appearing for the petitioner in the first writ petition, has contended that as per sub-rules (1)(e) and (2)(e) of Rule 5 of the Census Rules, publication of statistics will be made by the Census Commissioner. On further being questioned what is difference between statistics and data, he said that there is no basic difference. However, the Census Rules prescribes for publication. Dictionary meaning of the word ''publish' is to make public; to circulate; to make known to people in general; to issue; and to put into circulation. That apart, Mr. Tripathi submitted that the State Government can also publish or republish the notifications, orders and instructions under Rule 8 of the Census Rules. However, according to us, such notifications etc. relate to preliminary stage but not in respect of final stage. On the last date of hearing i.e. on 14th October, 2011, the State filed a supplementary counter affidavit in the second writ petition by saying that the Principal Secretary, Urban Development Department, Government of Uttar Pradesh, Lucknow by its letter dated 29th September, 2011 has requested the Director, Directorate of Census Operations, Uttar Pradesh, Government of India, Ministry of Home Affairs to provide complete break-up of ward-wise and caste-wise including population of Scheduled Castes and Scheduled Tribes for delimitation and reservation of wards on priority basis, when such Director on 10th October, 2011 wrote to the Registrar General and Census Commissioner, Government of India to inform at his level to the Principal Secretary, Urban Development Department, Government of Uttar Pradesh, Lucknow. However, we are not concerned at whose level it will be done but it will be done immediately.

Mr. S.K. Singh, learned Counsel appearing for the State Election Commission, then produced a letter dated 05th September, 2011 written by the Joint Commissioner, State Election Commission, Uttar Pradesh to the Principal Secretary, Urban Development Department, Government of Uttar Pradesh, Lucknow for the purpose of holding election within the scheduled time. He further contended that there is no difficulty on the part of the State Election Commission in holding the election. Incidentally, it is submitted by Mr. Mathur that under the Uttar Pradesh Municipal Corporations Act, 1959 (in short called as the ''Municipal Corporations Act') a rule, being the Uttar Pradesh Municipalities (Election of Members, Corporators, Chairmen and Mayors) Rules, 2010 was introduced, providing under Rule 4(2) therein that the election to such posts shall not be contested on the basis of political parties, but such provision has been declared as ultra vires by a Division Bench of this Court against which a special leave petition has been filed and the same is pending before the Supreme Court. However, we are not concerned with the same. Unless an order is passed by the Supreme Court otherwise, a law, which has been declared as ultra vires by the High Court, can not automatically become intra vires.

Mr. Mathur has made his specific case on the basis of the Uttar Pradesh Urban Local Self Government Laws (Amendment) Act, 2005 (in short called as the ''Amendment Act'), whereby an amendment was made in connection with Section 10-A of the Uttar Pradesh Municipalities Act, 1916 (in short called as the ''Municipalities Act') by inserting sub-section (4) in Section 10-A, as under:

"(4) Notwithstanding anything to the contrary contained in any other provision of this Act, where, due to unavoidable circumstances or in the public interest, it is not practicable to hold an election to constitute a Municipality before the expiry of its term, then until the due constitution of such Municipality, all the powers, functions and duties of the Municipality shall be exercised and performed by the District Magistrate or by a Gazetted Officer not below the rank of a Deputy Collector appointed by the District Magistrate in this behalf, and such District Magistrate or Officer shall be called the Administrator, and such Administrator shall be deemed in law to be the Municipality, the President or the Committee as the occasion may require."

Under such Amendment Act, a further amendment has also been made by inserting sub-section (4) in Section 8 of the Municipal Corporations Act, which is as follows:

"(4) Notwithstanding anything to the contrary contained in any other provisions of this Act, where due to unavoidable circumstances or in the public interest, it is not practicable to hold an election to constitute a Municipal Corporation before the expiration of its duration, then until the due constitution of such Municipal Corporation, all powers, functions and duties of the Corporation, its Mayor, Deputy Mayor, Wards Committee, Executive Committee, Development Committee and other Committees established under clause (e) of Section 5 shall as from the specified date, be vested in and be exercised, performed and discharged by the District Magistrate who shall be called the Administrator and such Administrator shall be deemed in law to be the Corporation, the Mayor, the Deputy Mayor, Ward Committee, Executive Committee, Development Committee or other Committee as the occasion may require."

In this regard, he has relied upon a Division Bench judgement of this Court reported in 2006 (1) UPLBEC 874 (Anugrah Narain Singh Vs. State of U.P. and others) to establish that period can be extended even upto six months from the date of expiry. The situation herein is beyond control of the State. Therefore, the aforesaid amendment of the Acts read with the Division Bench judgement of this Court can be applied in the present case.

On the other hand, Mr. Tripathi has drawn our attention to various Articles under Part IX-A of the Constitution of India inserted by the Seventy-fourth Amendment of the Constitution with effect from 01st June, 1993 giving constitutional recognition to the ''Municipalities', like Panchayats as under Part IX. Article 243P (e) of the Constitution gives the definition of ''Municipality', which means an institution of self-government constituted under Article 243Q. Article 243P (g) speaks about ''population' to mean that the population as ascertained at the last preceding census of which the relevant figures have been published. Pausing here for the moment, Mr. Tripathi has said that since no publication in respect of census of 2011 has been made, therefore, the census of 2001 will be applicable herein. Article 243Q of the Constitution speaks about constitution of: ''a Nagar Panchayat' for a transitional area, that is to say, an area in transition from a rural area to an urban area; ''a Municipal Council' for a smaller urban area; and ''a Municipal Corporation' for a larger urban area. By joining issue therein, Mr. Mathur has contended that Article 243Q (2) describes that ''a transitional area', ''a smaller urban area' or ''a larger urban area' means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.

According to us, by virtue of Article 243R composition of Municipalities can be made subject to provisions of Clause (2) thereof. Therefore, population of the area and density of the population are the conditions precedent for the purpose of holding election which can not be avoided. Likewise, Article 243T of the Constitution speaks about reservation of seats for Scheduled Castes and Scheduled Tribes as per the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. Though Other Backward Classes are not inserted in the Constitution but common submission on the part of the contesting parties is that the respective Act applicable in the State has taken care of about reservation for Other Backward Classes in addition to Scheduled Castes and Scheduled Tribes. Article 243U of the Constitution is, according to us, crux of the case. Such article prescribes the duration of Municipalities. Clause (1) of such article says that every Municipality, unless sooner dissolved, will continue for five years from the date appointed for its first meeting and no longer. Clause (3) of Article 243U provides that an election to constitute a Municipality shall be completed before the expiry of its duration as specified in Clause (1). Article 243ZA speaks that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243K under Part IX of the Constitution, which speaks about elections to the Panchayats. Therefore, the same principle will be applicable herein. Sections 13-A, 13-B and 13-G of the Municipalities Act speak about the power of the State Election Commission. Similarly, Sections 2(73-A), 45 and 46 of the Municipal Corporations Act are also saying that power lies with the State Election Commission. It is also common submission that the power of preparation of electoral rolls is lying with the State Election Commission. The contention of Mr. Tripathi is not with regard to power of the authority in taking the census or delimitation or for preparation of electoral rolls but with regard to creation of man-made situation by the State. He said that such man-made delay has been criticised by the Supreme Court as well as this High Court in numerous occasions. Therefore, man-made delay should not be considered as a good ground for delaying the election of the local bodies.

From the Constitution Bench judgement of the Supreme Court reported in 2002 (8) SCC 237 : AIR 2003 SC 87, in the matter of Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter) we find that general power of superintendence, direction, control and conduct of elections is vested with the Election Commission and timely election is one of the conditions to be fulfilled for the sake of democracy except in rare and exceptional circumstances, like act of God. Timely election, which is not free and fair, subverts democracy and frustrates the ultimate responsibility to assess objectively whether free and fair election is possible. Any man-made attempt to obstruct free and fair election is antithesis to democratic norms and should be overcome by garnering resources from the intended sources. This is also considered view of the Constitution Bench of the Supreme Court in 1978 (1) SCC 405 (Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others). In another Constitution Bench judgement reported in AIR 2007 SC 269 (Kishansing Tomar Vs. Municipal Corporation of the City of Ahmedabad and Ors.) the Supreme Court has held that 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 243U. It was further held 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 (3). Any revision of electoral rolls shall be carried out in time and if it can not 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 (3) and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time. 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 Government and other authorities. Provisions under Article 243U are mandatory in nature. The Supreme Court further held that 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 connection, it is necessary for all the State Governments to recognise 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 the State Legislature. In 2000 (3) AWC 2159 (L.B.) (Prem Lal Patel Vs. State of U.P. through Secretary, Panchayati Raj and another) a Division Bench of this Court has held that any attempt of the State Government to nullify effect of any provision of the Constitution deserves deprecation. In AIR 1985 SC 1233 (Lakshmi Charan Sen and others Vs. A.K.M. Hassan Uzzaman and others) a Constitution Bench of the Supreme Court has held that the elections can not be postponed for the reason that certain claims and objections still remain to be disposed of. The revision of electoral rolls is a continuous process which has to go on, elections or no elections. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. No High Court in exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election.

However, Mr. Naveen Sinha, learned Senior Counsel appearing for the petitioners in the second writ petition, has relied upon a Division Bench judgement of this Court reported in AIR 2011 Allahabad 1 (Pradeshiya Jan Jati Vikas Manch, U.P. & Ors. Vs. State of U.P. & Ors.) and contended that the right of proportional representation of a particular number or persons belonging to the castes included in the Scheduled Tribe is different than the right to contest the elections. Whereas the right of proportional representation is a constitutional right, right to contest election is a statutory right to be exercised in the manner in which it is provided for in the Statute. The census is carried out every ten years by the Central Government under the Census Act to count the population for its proper evaluation. The collection of empirical data in census is taken into account for various purpose. One of the purpose to collect such data is to give proportional representation to the people of the country in the elections at various levels. The non-availability of the accurate data of each caste cannot, however, be a ground to either delay elections or deny the constitutional rights of proportional representation to the citizens of the country. According to Mr. Sinha, the matter can be deferred for a period of fifteen days or so for the purpose of getting empirical data and thereafter the election process can be started.

We find that Article 243U of the Constitution is specific with regard to duration of Municipalities and about the elections for the future. Language of Article 243U to the extent that duration of Municipalities shall continue for five years from the date appointed for its first meeting and no longer and the election to constitute a Municipality shall be completed before the expiry of its duration specified in Clause (1) of such Article, as above, is mandatory not only from the plain reading of such Article but also by the interpretation of the Constitution Benches of the Supreme Court in Gujarat Assembly Election Matter (supra), Kishansing Tomar (supra) and Lakshmi Charan Sen (supra) as aforesaid. Therefore, there is no question of any departure from the constitutional mandate regarding duration of Municipalities, etc.

According to us, balance should be struck in between two constitutional mandates, as the election can not be held beyond the period as per Article 243U of the Constitution i.e. five years from the date appointed for its first meeting and similarly, the election can not be allowed to be held on the basis of census of 2001 because in that case large number of people will remain unrepresented. Census with regard to population is admittedly a continuous process. The process has been started in the early part of year 2011 and admittedly it is finished excepting certain formalities. Therefore, there should not be any delay in publication of data on the part of the Census Commissioner, if not already published.

Hence, we direct that publication of census data giving ward-wise and caste-wise break-up of population including Scheduled Castes, Scheduled Tribes and Other Backward Classes will be made immediately, so that process of delimitation and reservation of seats can be made by the State on priority basis. Such process will be completed by the State on war-footing, irrespective of holidays, as expeditiously as possible giving priority to the areas where elections are to be held by 15th November, 2011 and so on and also in respect of the transitional areas. After completing such process, the election notification will be issued but issuance of the same will not be delayed beyond 31st October, 2011. Respective dates of election will be fixed as per the holding of first meeting of elected bodies of the Municipalities and/or Municipal Corporations in the last election. However, under no circumstances the election will be held beyond the period as prescribed in the Constitution read with several Constitution Bench judgements of the Supreme Court, as referred above, and by no means such election will be held as per Census-2001 but as per Census-2011. The State Election Commission is hereby directed to hold a meeting prior to the date of issuance of notification.

With the above observations and order, the writ petitions are disposed of.

No order is passed as to costs.

(Justice Amitava Lala)

I agree.

(Justice V.K. Mathur)

Dated: 19th October, 2011.

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Hon'ble Amitava Lala, J.

Hon'ble V.K. Mathur, J.

Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 10.00 A.M. in the Court upon notice to the parties.

The writ petition is disposed of, however, without imposing any cost.

Dt./- 19.10.2011.

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For judgement and order, see order of the date passed on the separate sheets (twelve pages).

Dt./-19.10.2011.

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