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CASE NO.: Appeal (civil)  5756 of 2005

PETITIONER: Kishansing Tomar

RESPONDENT: Municipal Corporation of the City of Amedabad & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: CJI, K.G. Balakrishnan & S.H. Kapadia C.K. Thakkar P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

K.G. BALAKRISHNAN, J.   

       This appeal is directed against the judgment of the  Division Bench of the High Court of Gujarat.   The appellant  filed a  Special Civil  Application No. 9847 of 2005 praying for  a writ of mandamus or any other appropriate writ  or direction  to the respondents in the writ petition, namely,  the Municipal  Corporation of the City of Ahmedabad, the State of Gujarat  and the Gujarat State Election Commission, to take all steps  necessary for the purpose of holding elections for constituting  the Municipal Corporation of the  city of Ahmedabad before  the expiry of the duration of the Municipal Corporation  constituted pursuant to the elections held in October, 2000.    The appellant, who was the writ petitioner before the High  Court, was the Chairman of the Standing Committee of the  Ahmedabad Municipal Corporation (hereinafter referred to as  "AMC").   The elected body of the AMC was constituted for the  relevant period pursuant to an election held in  October, 2000  and its term was due to expire on October 15, 2005.   The  appellant apprehended that the authorities may delay the  process of election to constitute the new Municipal body and  therefore filed the aforesaid writ petition on 23rd August,   2005.   The AMC filed an affidavit before the High Court  stating that it was the responsibility of the third respondent,  namely,  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 Corporations  Act, 1949, the State Govt. had issued a Notification on 8th  June, 2005 determining the wards for the city of Ahmedabad   by which the total number of wards  had been increased from  43 to 45 and 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 &  Allocation of Reserved Seats) Rules, 1994 and that  the  Commission had issued a circular requiring  the Collectors  and the  Designated  Officers to furnish the  details and to  make proposals for delimitation of the wards.   The  Commission contended that it would take two months’ time to  complete the process of delimitation as  the preparation of  voters’ list in each ward had to be revised in accordance with  the Bombay Provincial Municipal Corporation  (Registration of  Voters) 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

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months’ time for completing the process of election and the  Commission could act only after the State Govt. issued the  notification.   The State Govt. produced a chart showing the  detailed steps taken by the State Govt. at various  stages  culminating in the issue of Notification dated 8th June, 2005.

       The appellant contended before the  Single Judge that in  view of Article 243-U 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.    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.

       Aggrieved by the decision of the Single Judge, the   appellant filed a Letters Patent Appeal before the High Court  and the Division Bench of the High Court by the impugned  judgment 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  per the dates given in its affidavit and the L.P.A. was  dismissed.   Aggrieved  thereby,  the present appeal is  preferred before us  by the appellant.

       We heard  appellant’s  counsel as also the counsel for the  respondents.   The main thrust of the arguments of the  appellant’s counsel was that in view of the various provisions  contained in Part IX 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.    The counsel for the respondents, especially the counsel for the   State Election Commission contended that every effort was    made  by the Election Commission 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.

       The question that arises for consideration is whether  Article 243-U of the Constitution,  by which the duration of  the Municipality is fixed  is mandatory in nature and any  violation could be justified in the circumstances stated by the  respondents.   Article 243-U  of the Constitution reads as  follows : "243-U.  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).

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(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 dissolution:

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 have continued under clause (1) had it not  been so dissolved."

       Article 243-ZA provides 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 a State Election Commission referred to in Article  243-K.

       Article 243-S states that there shall be constituted  Wards’ Committees consisting of one or  more wards, within  the territorial area of a  Municipality having a population of  three lakhs or more and that the  State Legislature  may by  law make provision with respect to (a) the composition and the  territorial area of a Wards Committee; and (b) the manner in  which the seats in a Wards Committee shall be filled.

       Under Article 243-T,  it is  provided that the seats shall  be reserved for the Scheduled Castes and the Scheduled  Tribes in every Municipality and the number of seats so   reserved shall bear, as nearly as may be the same proportion  to the total number of seats to be filled by direct election in  that Municipality as the population of the Scheduled Castes in  the Municipal area or of the Scheduled Tribes in the Municipal   area bears to the total population of that area and such seats  may be allotted by rotation to different constituencies in a   Municipality.   Further  clause (2) of Article 243-T says that  not less than one third of the total number of seats  reserved  under clause (1) shall be reserved for women belonging to the  Scheduled Castes or, as the case may be, the Scheduled  Tribes.   Clause (3) of this Article further provides that not less  than one third (including the number of seats reserved for  women  belonging  to the Scheduled Castes and the Scheduled  Tribes) of the total number of seats to be filled by direct  election in every Municipality shall be reserved for women and  such seats may be allotted by rotation to different  constituencies in a Municipality.   Clause (6)  empowers the  State Legislature to make any provision for reservation of seats  in any Municipality or offices of Chairpersons in the  Municipalities in favour of backward class of citizens.

       The provisions contained in the Bombay Provincial  Municipal Corporations Act, 1949 also are relevant to be noted  here.  Section  6 of this Act deals with the duration of a

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corporation.   It reads as under :

"6.   Duration of Corporation : (1)     Every Corporation unless sooner dissolved,  shall continue for five years from the date  appointed for its first meeting and no longer.

(2)     A Corporation constituted upon the dissolution  before the expiration of its duration shall continue  only for the remainder of the period for which it  would have continued under Sub-Section (1) had it  not been so dissolved."

       Section 6A reads as under :

"6A. Terms office of Councillors : The term of the office of the Councillors shall be co- extensive with the duration of the corporation."

       Section 6B is to the following effect : "Election to Constitute the Corporation :

An election to constitute a corporation shall be  completed\027

(a)     before the expiration of its duration specified  in sub-section (1) of the section 6.

(b]    before the expiration 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."

       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 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.

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Having regard to these inadequacies, it is  considered necessary that provisions relating to  urban local bodies are incorporated in the  Constitution, particularly for \026

(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 --- \005\005\005\005\005\005\005

(f) fixed tenure of 5 years for the Municipality and re- election within a period of six months of its dissolution."

       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 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.  

       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.

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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 provisions of Article 243-U could not  be  complied with stricto sensu.  

       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.

       Speaking for the Bench,  Justice Khare, as he then was,  in paragraph 79 of the Answer to the Reference,  held : "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.

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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."

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Concurring with the foregoing opinion, Pasayat, J. in  paragraph 151, stated as follows : "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 certainly  would be against the scheme of the Constitution  and the basic structure to that extent shall be  corroded."

       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.

       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 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.

It is true that there may be certain man-made calamities,

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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.

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.     In terms of Article 243 K and Article 243 ZA (1) the same  powers are vested in the State Election Commission as the  Election Commission of India under Article 324.  The words in  the former provisions are in pari materia  with the latter  provision.

The words, ’superintendence, direction and control’ as  well as ’conduct of elections’ have been held in the "broadest of  terms" by this Court in several decisions including in Re :  Special Reference No. 1 of 2002 (2002) 8 SCC 237  and  Mohinder Singh Gill’s case  (1978) 1 SCC 405 and the  question is whether this is equally relevant in respect of the  powers of the State Election Commission as well.  

From the reading of the said provisions it is clear that the  powers of the State Election Commission in respect of conduct  of elections  is no less than that of the Election Commission of  India in their respective domains.  These powers are, of  course, subject to the law made by Parliament or by State  Legislatures provided the same do not encroach upon the  plenary powers of the said Election Commissions.

The State Election Commissions are to function  independent of the concerned State Governments in the  matter of their powers of superintendence, direction and  control of all elections and preparation of electoral rolls for,  and the conduct of, all elections to the Panchayats and  Municipalities.

Article 243 K (3) also recognizes the independent status  of the State Election Commission.  It states that upon a

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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  concerned government shall have to render full assistance and  co-operation 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 concerned State Government  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  concerned State Government to provide all necessary  cooperation and assistance to the State Election Commission  to enable the latter to fulfill the constitutional mandate.   

Taking into account these factors and applying the  principles of golden rule of interpretation, the object and  purpose of  Article 243-U is to be carried out.   

       As the elections to the Ahmedabad Municipal  Corporation have already been held and the new Municipal  body constituted, no further direction is required in the  matter.  With these observations, we dispose of the appeal  with no order as to costs.