High Court of Himachal Pradesh

Raju Thakur v. State Election Commission and Ors.

MANU/HP/0352/2017

29.05.2017

Election

Election Commission shall complete election before expiration of duration of five years' period

Aggrieved by order passed by Respondent No. 1 on 9th May, 2017, whereby elections to Shimla Municipal Corporation have been postponed, Petitioner has filed instant writ petition for issuance of a writ of certiorari to quash office order dated 9th May, 2017. Petitioner prayed for issuance of a writ of mandamus directing Respondent authorities to conduct election on time and to constitute a duly elected Shimla Municipal Corporation on or before 4th June, 2017. Issue a writ of mandamus directing concerned authorities to initiate appropriate necessary disciplinary proceedings against erring officials and qua removal of present incumbent heading Respondent No. 1." Petitioner argued that, order dated 9th May, 2017 cannot withstand judicial scrutiny as it has been issued in violation of provisions of Article 243U of Constitution as interpreted by Constitutional Bench of Supreme Court in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others.

State Election Commission shall not put forward any excuse based on unreasonable grounds that, election could not be completed in time. Election Commission shall try to complete election before expiration of duration of five years' period as stipulated in Clause (5) Article 243U. Any revision of electoral rolls shall be carried out in time and if, it cannot be carried out within a reasonable time, election has to be conducted on basis of the then existing electoral rolls. Election Commission shall complete election before 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 stipulated time.

Exposition of law culled out from decision in Kishansing Tomar's case 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 authorities from holding elections to Municipality and other reasons for delay, Supreme Court had noted that, former are exceptional circumstances and under no other circumstance would Election Commission be justified in delaying process of election. Indubitably, exercise of special revision of electoral rolls as is being undertaken by Respondent No. 1 does not fall within former category so as to entitle it to postpone elections. Provisions contained in Article 243U of Constitution, makes it absolutely clear that, period of five years fixed thereunder to constitute Municipality is mandatory in nature and has to be followed in all respects.

Exercise now being undertaken by Respondent No. 1 for revision of electoral rolls cannot rest process of election and should have been done timely. For, it is incumbent upon Respondent No. 1 and other Respondents to carry out mandate of Constitution and to see and ensure that, a new Municipality is constituted in time and election to Municipality are conducted before expiry of its duration of five years as specified in Clause (1) of Article 243 (4). Revision of electoral rolls was required to be carried out in time by Respondents and if they have not been carried out within time frame, then election has to be conducted on basis of existing electoral rolls.

Action of Respondents in postponing election, even though presumed to be bonafide, cannot be countenanced or upheld as same is contrary to Constitutional mandate of Article 243U as interpreted by Constitution Bench of Supreme Court in Kishansing Tomar's case and thereafter re-affirmed in K.B. Nagur's case. Accordingly, order passed by Respondent No. 1 on 9th May, 2017 is quashed and set-aside.

Respondent No. 1 shall forthwith and no later than 24 hours of receipt of this judgment, frame a programme for general elections of Municipal Corporation and take all consequential action so as to ensure that, elections are held no later than 18th June, 2017, even if this calls for some deviation of Rule 33. Respondents shall ensure that, new body of duly elected representatives of Corporation is constituted latest by 19th June, 2017. Election shall be conducted on basis of final electoral rolls published on 5th May, 2017 subject to proviso as contained in Rule 25 of Himachal Pradesh Municipal Corporation Election Rules, 2012. Elected and nominated body of existing Municipal Corporation shall not be permitted to be in office after 4th June, 2017 and it shall further be duty and responsibility of State Government to put in place a proper mechanism so as to ensure that, working of Corporation does not suffer on account of implementation of this judgment." However, this judgment shall not be treated as a precedent. Petition disposed off.

Relevant

Kishansing Tomar vs. Municipal Corporation of the City of Amedabad and Ors. MANU/SC/8563/2006
, K.B. Nagur M.D. (Ayu.) vs. Union of India (UOI)

Tags : Office order Provisions Violation

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