12 Jan 2021 2:41 PM GMT
In the wake of the upcoming local bodies polls in Gujarat, the Supreme Court on Tuesday agreed to hear finally the challenge to the constitutionality of the state Rules on elections to the municipal corporations from January 19.The bench headed by Justice Ashok Bhushan was hearing the SLP preferred against the July 29, 2015 decision of the Gujarat High Court dismissing the challenge to the...
In the wake of the upcoming local bodies polls in Gujarat, the Supreme Court on Tuesday agreed to hear finally the challenge to the constitutionality of the state Rules on elections to the municipal corporations from January 19.
The bench headed by Justice Ashok Bhushan was hearing the SLP preferred against the July 29, 2015 decision of the Gujarat High Court dismissing the challenge to the vires of section 5(3)(iii)(a) and section 29A of the Gujarat Provincial Municipal Corporation Act, 1949 and sections 2 and 3 of the Gujarat Local Authorities Laws (Amendment) Act, 2009 as it violates 'one member one ward' mandate. Rules 4 and 5 of the Bombay Provincial Municipal Corporation (Delimitation of Wards in the City and Allocation of Reserved Seats) Rules, 1994 including the amendment of 2015 were also challenged. By virtue of the amendment of January 15, 2015, the number of councillors in a particular ward has been increased to 4 under section 5(3)(iii)(a) of the Gujarat Provincial Municipal Corporation Act.
When the matter first came up on the docket on Tuesday, Senior Advocate Maninder Singh, appearing for the State Election Commission, advanced that the matter had come to be listed for finally hearing today, deeming it to be a non-miscellaneous day. At this, the bench proceeded to adjourn the matter by 4 weeks.
Later in the day, Senior Advocates Kapil Sibal and Harin Raval, for the present petitioners, appeared before the bench. "Both Mr Raval and I were connected. We were here. But as soon as the matter came up, both Mr Raval and I got disconnected. It is very surprising that at the same instant when the matter came up, both of us got disconnected at the same time", advanced Mr Sibal.
"Something very unfortunate has happened. The Gujarat elections to the municipal corporations are to be held. We had challenged the constitutionality of the Rules in 2015 and then it was said that the matter needs to be heard immediately. But it has not come to be heard for five years. It was listed before the Chief Justice in November last year and he said that it shall be heard finally on January 12. Today, Your Lordships have adjourned it for four weeks?", he urged.
"We had already directed fresh elections to be held", noted Justice Bhushan.
Mr Rawal pointed the bench to its December 2020 order on an application by the SEC for a stay on the operation of the judgment dated 21.10.2015 of the Gujarat High Court, to the extent that it reads deemed extension of the term of an elected body which was claimed to be contrary to the Constitutional mandate prescribed in Part IX and Part IX-A of the Constitution. "We make it clear that as per the constitutional provision of Article 243E and 243U, the tenure of elected bodies is only for five years from the date appointed for its first meeting and no longer. After expiry of the tenure in the month of December, 2020, it goes without saying that elected bodies shall cease to function and as submitted fresh steps for constituting the fresh elected bodies shall be undertaken within the time stated hereinabove (by the end of February)", a bench led by Justice Bhushan had directed on December 9, 2020.
"The matter has to be heard finally. We have been waiting to be heard for years, for years!", pressed Mr Sibal on Tuesday.
The bench then agreed to take up the matter next week.
Mr Sibal prayed, "Please say that no notification be issued in the meantime. Otherwise, they will argue that the matter has become infructuous"
"No, we will not pass any such order. We will start hearing you next week. If our final judgement is in your favour, everything will be subject to it", assured Justice Bhushan.
Elections to six municipal corporations, including Ahmedabad, 55 municipalities, 31 district panchayats and 231 taluka pachayats were supposed to be held in November, 2019, a month before their five-year terms came to end, but were postponed by three months in view of the Covid-19 pandemic.
In its December 9 order, the bench noted that as per the constitutional provisions the term of the local bodies - Municipality, Nagar Palika, Panchayat is to continue for five years from the date appointed for its first meeting and no longer. It was submitted by SG Tushar Mehta that the tenure of Municipality Corporation/Municipalities/Panchayats are coming to an end in December, 2020. He submitted that looking to the pandemic Covid-19 the process of completion of election, before the end of tenure, could not be completed and State Election Commission has already taken a decision to postpone the process of preparation of voter list for a period of three months. On the query by the Court at what earliest time election of all the aforesaid bodies can be completed, Mr. Maninder Singh, after instructions, submitted that election of all the local bodies shall be completed by the end of February, 2021.
Accordingly, the bench had ordered that the tenure of the bodies shall expire in December and no longer, and that fresh elections will be held within the time stated. It had also directed that in the meantime, the Chief Executive Officer (whatever designation called in each local body) shall carry on necessary functions without taking any policy decision so that all local bodies will be smoothly run till the newly elected bodies take charge.
On August 13, 2010, the Gujarat High Court had rendered its judgment on a PIL raising challenge to the manner in which the respondents-the State Government as well as the State Election Commission have decided to conduct election of Councillors to different Municipal Corporations in the State of Gujarat. Sole objection of the petitioner was that when the local area of Municipal Corporation is divided into different wards, each ward must have one Councillor and policy of having multi-member wards (three number in present case) is constitutionally invalid. "In the present case, statutory provisions provide that three Councillors shall be elected from each ward of a Municipal Corporation. Each voter has to caste vote once but has to indicate his preference for three candidates, who according to him are best suited to represent the ward. We do not see how this methodology is opposed to principle of 'one man one vote'. Weightage of vote caste each voter is the same. Simply because each voter is asked to show his preference for three candidates to represent the ward, that by itself does not bring about any inequality in weightage of the votes caste by different voters. This contention of the petitioner therefore, deserves to be turned down", the High Court had said.
The Court had stated that the Constitutional provisions do not prohibit multi-member wards and the State Legislature is competent to make laws with respect to election to the Municipalities. "Therefore, providing for multi-member wards through validly formulated State Legislation, in our view is not impermissible. None of the provisions contained in the Act or the Delimitation Rules of 1994 which are under challenge in this petition violate constitutional provisions. We have already held that State is competent to make laws with respect to municipal elections. Thus when we find that State neither lacks competence nor in our view any of the statutory provisions are in conflict with Article 243R or 243S of the Constitution or any other provision, challenge to the vires of said provisions must fail", ruled the Court, not accepting the argument of the petitioner of one ward-one councillor.
In the July 29, 2015 judgment, which is impugned in the present case before the apex court, the High Court had been of the view that earlier also the vires of Section 5(3)(iii)(a) and Sections 29A(2)(a) and 29A(3)(a) of the Bombay Provincial Municipal Corporation Act, 1949, as also Rule 4 of the Bombay Provincial Municipal Corporations (Delimitation of Wards in the City and Allocation of Reserved Seats) Rule, 1994 and Rule 2(b) of Gujarat Municipal Corporation Wards Committee Functions, Duties, Territorial Areas and Procedure for Transaction of Business Rules, 2007 were challenged and the court had, in its August 13, 2010 judgment, upheld validity of the Sections and the Rules.
"The petitioners have tried to raise the same issue with slight modification that now they are challenging the amendment made on 15.1.2015 by which the number of councillors in a particular ward has been increased to 4 under Section 5(3)(iii)(a) of the Gujarat Provincial Municipal Corporation Act. Since the validity of the Rules has already been upheld by the Division Bench and only in numbers of members have been increased from three to four, in our opinion, this will not be invalid and unconstitutional", held the High Court in the impugned judgment.
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