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2019 DIGILAW 417 (UTT)

Naeem Ahmad v. State of Uttarakhand

2019-08-01

ALOK KUMAR VERMA, RAMESH RANGANATHAN

body2019
JUDGMENT : Ramesh Ranganathan, J. Heard Mr. Jitendra Chaudhary, learned counsel for the petitioner, Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand, Mr. Sanjay Bhatt, learned Counsel for the State Election Commission and Mr. Suresh Chandra Dumka, learned counsel for sixth respondent-Union of India and, with their consent, the writ petition is disposed of at the stage of admission. 2. The petitioner is the erstwhile Gram Pradhan of Gram Panchayat Gulargozi, Vikas Khand Jaspur, Tehsil Jaspur, District Udham Singh Nagar. He has invoked the jurisdiction of this Court seeking a mandamus commanding the State Election Commission and the State Government to conduct the rural local bodies three tier panchayat elections on the basis of the existing un-revised electoral rolls along with the existing and pre-existing constituencies, and to issue election notification for panchayats in the entire State of Uttarakhand, except District Haridwar, as contemplated under the provisions of the Uttarakhand Panchayati Raj Adhiniyam, 2016 read with Part IX of the Constitution of India; a writ of mandamus commanding the State Government to render full assistance and co-operation to the State Election Commission to enable them to conduct free and fair elections within the shortest time frame of a stipulated period of 45 days as mandated by the Supreme Court in Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad and others : 2006 (8) SCC 352 ; a writ of certiorari to call for the original records, quash the impugned notification dated 09.07.2019 issued by the State Government, and permit all three-tier panchayats to perform their duties till the constitution of newly elected panchayats at three levels in rural areas; a writ or direction commanding the Union of India to impose President’s Rule in the State of Uttarakhand after dissolving the existing State Government as per Article 356 of the Constitution of India, because it had failed to perform its constitutional obligations as per the mandate of the Constitution of India, and for acting in utter disregard of the constitutional provisions; and to declare Section 130(6) of the Uttarakhand Panchayati Raj Adhiniyam, 2016 as ulta vires the Constitution of India. 3. Mr. 3. Mr. Jitendra Chaudhary, learned counsel for the petitioner, would fairly state that, in the light of the averments in the counter affidavit filed by the respondents, the petitioner does not wish to press for an adjudication on prayers (iv) and (v) in the present writ petition; and this Court may consider leaving the contentions, raised in relation thereto, open to be agitated by the petitioner, if need be, in subsequent legal proceedings. In the light of submission now made by Sri Jitendra Choudhary, learned counsel for the petitioner, prayer Nos. 4 & 5 are dismissed as not pressed, leaving the questions of law, raised in relation thereto, open for examination, if need be, later. 4. The dispute in this writ petition relates to holding of elections to Panchayati Raj Institutions under Part IX of the Constitution of India, except for District Haridwar where the five years term of the Panchayati Raj Institution is due to expire only in December, 2020. With regards all other Panchayati Raj Institutions, in the remaining 12 Districts of the State of Uttarakhand, the five year term of the elected Gram Panchayats expired on 15.07.2019, and for the second and the third tier, the term of five years is due to expire by the middle of this month, less than 15 days hence. 5. The duration of Panchayats is prescribed under Article 243 (E) and, under clause (1) thereof, every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. Clause (3) (a), of Article 243-E of the Constitution of India, requires an election, to constitute a Panchayat, to be completed before the expiry of its duration as specified in clause (1). Consequently, elections to all Gram Panchayats in the State (except those in District Haridwar) should have been completed before 15.07.2019. Though more than a fortnight has elapsed thereafter, both the State Government and the State Election Commission seek four more months’ time for elections to be completed for all the three tiers of the Panchayati Raj Institutions of the State, other than Haridwar. Though more than a fortnight has elapsed thereafter, both the State Government and the State Election Commission seek four more months’ time for elections to be completed for all the three tiers of the Panchayati Raj Institutions of the State, other than Haridwar. The first tier elections, to Panchayati Raj Institutions in the State of Uttarakhand, i.e. for Gram Panchayats are required to be held in the first instance, along with the elections to the post of members of the territorial constituencies of Kshetra Panchayat, and members of the territorial constituencies of the Zila Panchayat. Consequently, a voter would be given three ballot papers, to enable him to exercise his franchise for each of the three posts. After they are elected as member of the Kshetra Panchayat, the elected members, in turn, elect the Block Pramukh and Up-Pramukh. Likewise those members, who have been elected as members of the Zila Panchayat, in turn, elect the Zila Panchayat Adhyaksh and the Upadhyaksh. 6. The obligations of the State Government and the State Elections Commission to hold elections within the prescribed time-frame is a constitutional imperative under Article 243-E(3)(a) of the Constitution of India. A Constitution Bench of the Supreme Court, in Kishansing Tomar, observed: “…..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….” (emphasis supplied) 7. The Supreme Court made it clear, thereafter, that, except for grave calamities, the State Elections Commission would not be justified in delaying the process of elections. The Supreme Court made it clear, thereafter, that, except for grave calamities, the State Elections Commission would not be justified in delaying the process of elections. To quote:- “…..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 (sic other) circumstance would the Election Commission be justified in delaying the process of election after consulting the State Government and other authorities. But that should be an exceptional circumstance and shall not be a regular feature to extend the duration of the municipality. Going by the provisions contained in Article 243-U, it is clear that the period of five years fixed thereunder to constitute the municipality is mandatory in nature and has to be followed in all respects. It is only when the municipality is dissolved for any other reason and the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the municipality for such period. ……In our opinion, the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution…..” (emphasis supplied) 8. In view of the Constitution mandate under Article 243-E (3) (a) of the Constitution, and the law laid down by the Constitute Bench of the Supreme Court in Kishansing Tomar which, in view of Article 141 of the Constitution of India, is binding on both the State Government and the State Election Commission, elections to Panchayati Raj institutions in the State should have been completed, in its entirety, before 15th July, 2019. These elections are being needlessly delayed, and it is only after the petitioner invoked the jurisdiction of this Court, by way of the present writ petition, that both the State Government and the State Election Commission have now woken-up, and have agreed to hold elections to Panchayati Raj institutions in the State within a specified time frame. 9. These elections are being needlessly delayed, and it is only after the petitioner invoked the jurisdiction of this Court, by way of the present writ petition, that both the State Government and the State Election Commission have now woken-up, and have agreed to hold elections to Panchayati Raj institutions in the State within a specified time frame. 9. In terms of Article 243-K(1) of the Constitution of India, the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. Under clause (3) of Article 243-K of the Constitution of India, the Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). 10. The very object of conferring constitutional status on the State Election Commission under Article 243-K of the Constitution of India is to secure its independence, and enable it, without interference from any quarter, to hold elections, both to the Panchayati Raj Institutions under Part IX and Urban Local Bodies under Part IX-A of the Constitution, within time. Yet we find the State Election Commission pleading helplessness for the delay and in seeking to place the blame, for the delay in holding elections, upon the State Government. The State Election Commission needs to remind itself of what the Supreme Court, in Kishansing Tomar, had observed. After holding that it was necessary for all the State Governments to recognise the significance of the State Election Commission which was a constitutional body, it should abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during elections for Parliament and the State Legislatures and, in the domain of elections to panchayats and municipal bodies under Parts IX and Part IX-A, they enjoy the same status as the Election Commission of India for the conduct of elections to these bodies, the Supreme Court held:- “….Article 243-K(3) also recognises the independent status of the State Election Commission. It states that upon a request made in that behalf the Governor shall make available to the State Election Commission “such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1)”. It is accordingly to be noted that in the matter of the conduct of elections, the Government concerned shall have to render full assistance and cooperation to the State Election Commission and respect the latter’s assessment of the needs in order to ensure that free and fair elections are conducted. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the State Government concerned in discharging its constitutional obligation of holding the elections to the panchayats or municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the State Government concerned to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfil the constitutional mandate…..” (emphasis supplied). 11. The law laid down by the Constitution Bench, in Kishansingh Tomar, would enable the State Elections Commission, if it was of the view that the State Government was not co-operating with them in the discharge of their constitutional obligations, to hold elections to Panchayati Raj institutions on time, to approach the High Court and thereafter, if need be, the Supreme Court seeking a writ of mandamus to the State Government to provide all necessary co-operation. While nothing prevented the State Election Commission from approaching this Court, in case they were of the view that the State Government was needlessly delaying holding elections, the State Election Commission remained content and chose not to act pursuant to what, they now claim, is the fault of the State Government in failing to ensure timely completion of the election process, despite the Constitutional mandate that elections should be held before completion of the five years tenure of the previously elected body. 12. As such a situation may arise later for elections to Panchayat Raj institution in Hardwar district also, we asked both Mr. Paresh Tripathi, learned Chief Standing Counsel, and Mr. 12. As such a situation may arise later for elections to Panchayat Raj institution in Hardwar district also, we asked both Mr. Paresh Tripathi, learned Chief Standing Counsel, and Mr. Sanjay Bhatt, learned Standing Counsel for the State Election Commission, whether the Panchayati Raj Institution in District Haridwar would meet a similar fate. While Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand, would submit that, in the absence of instructions, he is in no position to give an assurance that elections, at least to Panchayati Raj Institutions of Haridwar district, would be held within time, Mr. Sanjay Bhatt, learned Standing Counsel for State Election Commission, would assure this Court that elections to Panchayati Raj Institutions in Haridwar district would be held within time; and in case they were of the view that the State Government has not co-operated with them in the timely completion of such elections, they would then invoke the jurisdiction of this Court seeking appropriate directions. 13. The reasons for seeking 120 days’ time, to complete the entire election process, are furnished in the form of a table along with the counter affidavit. It reads as under:- Sl. No. Details of Proceedings Time Schedule for Proceedings 1. Amendment/printing of 07 different Handbooks on Election Guidelines, preparation of Nomination Form and other Forms at the level of the Commission prescribing therein the relevant Rules/ thereafter Completion of Tender Process at District Level, its Printing and procuring of Election materials for preparation of Polling Kit, issuing various orders/directions regarding conducting election and accordingly preparation of election related activities at District level. 50 days 2. For conducting Three Tier Panchayat General Election (Ward Member, Pradhan, Member Kshetra Panchayat and Member Zila Panchayat) in three phases (from the date of availability of reservation and allotment of seats and officers by the State Government) 40 days 3. For conducting the general election of Pramukh Kshetra Panchayat, Up-Pramukh and Chairman/Vice Chairman of Zila Panchayat (from the date of availability of reservation and allotment of seats and officers by the State Government) 30 days Total 120 days 14. The counter affidavit filed by the State Government also gives details regarding the time-frame within which the process of reservation shall be completed. The contents of the said table read thus: 1. Tentative Notification of proposal or reservation 17.08.2019 2. Date of receiving objection to the proposed reservation 19 & 20.08.2019 3. The counter affidavit filed by the State Government also gives details regarding the time-frame within which the process of reservation shall be completed. The contents of the said table read thus: 1. Tentative Notification of proposal or reservation 17.08.2019 2. Date of receiving objection to the proposed reservation 19 & 20.08.2019 3. Disposal of objection by concerned District Magistrate 21 & 22.08.2019 4. Final Notification of reservation 24.08.2019 5. Date of submission of reservation proposal to the Directorate 26.08.2019 6. Forwarding of reservation proposal to the State Election Commission 27.08.2019 15. We do find considerable force in the submission of Mr. Jitendra Chaudhary, learned counsel for the petitioner, that the time sought for by the respondents appears unduly long, more so in the light of the fact that elections to Panchayati Raj Institutions ought to have been completed before 15.07.2019. That would not, however, justify the entire elections process being short circuited, only for the validity of such elections to be questioned in subsequent legal proceedings. 16. The time table, furnished along with the counter affidavit filed by respondent Nos. 1 & 2 can, as suggested by Sri Jitendra Choudhary, learned counsel for the petitioner, be cut short and the election process expedited. We refrain from interfering with the aforesaid table, detailed in the counter affidavit, subject to the condition that the time scheduled shall be strictly adhered to both by the State Government and by the State Election Commission; and elections to all the three tiers of Panchayati Raj Institutions, in the State of Uttarakhand, shall be completed, and the elected bodies shall commence discharging its functions on or before 30.11.2019. Needless to state that the primary obligation, to ensure compliance with these directives, lies on the State Election Commission; and, in case they are of the view that the State Government is needlessly delaying the election process, it is open to them to invoke the jurisdiction of this Court, under Article 226 of the Constitution of India, well within time. 17. The other question, which necessitates examination, is regarding appointment of Administrators. We cannot brush aside the submission of Mr. 17. The other question, which necessitates examination, is regarding appointment of Administrators. We cannot brush aside the submission of Mr. Jitendra Chaudhary, learned counsel for the petitioner, that, in the absence of any provision in Part IX and IX-A of the Constitution to appoint an Administrator, the order of the Division Bench of this Court, in WPPIL No. 312 of 2008 dated 20.12.2010, would disable the respondents from appointing Administrators on expiry of the five year term of office of the elected representatives of Panchayati Raj Institutions. The fact, however, remains that Parts IX and IX-A of the Constitution do not provide for extension of the tenure of the elected members of the Panchayati Raj Institution beyond their five years term. While elections ought to have been, undoubtedly, held and completed before 15.07.2019, that does not mean that, for the failure of the State Government and the State Election Commission to hold elections within time, this Court would be justified in directing that elected representatives of Panchayati Raj Institutions should be continued, till fresh elections are held and the election process is completed. It is in such circumstances that this Court had, in its interim order dated 26.07.2019, directed that the Administrators, appointed by the State Government, shall only discharge essential day-to-day functions, and not take any policy decision. This interim order, passed by us on 26.07.2019, shall continue to operate till the elected bodies of all Panchayati Raj institutions in the State, assume office on or before 30.11.2019. 18. The writ petition is, accordingly, disposed of. No costs. 19. Let a certified copy of this order be issued to the learned counsel for the parties, on payment of the prescribed charges, by 03.08.2019.