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Notify Overdue Elections Of Maharashtra Local Bodies Within 2 Weeks Based On Delimitation Existing Before March 11 : Supreme Court Directs SEC

Mehal Jain
5 May 2022 4:40 AM GMT
Notify Overdue Elections Of Maharashtra Local Bodies Within 2 Weeks Based On Delimitation Existing Before March 11 : Supreme Court Directs SEC
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The Supreme Court on Wednesday directed the Maharashtra State Election Commission to announce the schedule for elections for around 2486 local bodies, whose term expired long ago, election within two weeks.The Court had earlier stayed the state government's attempt to introduce OBC quota in the elections on the ground that the state had not carried out the modalities that must precede...

The Supreme Court on Wednesday directed the Maharashtra State Election Commission to announce the schedule for elections for around 2486 local bodies, whose term expired long ago, election within two weeks.

The Court had earlier stayed the state government's attempt to introduce OBC quota in the elections on the ground that the state had not carried out the modalities that must precede the exercise.
On Wednesday, the bench of Justices A.M. Khanwilkar, A. S. Oka and C. T. Ravikumar recorded that the instant petitions have questioned the Constitutional validity of the Sections 2,3,4(1)(a) and 5 of the Mumbai Municipal Corporation Act, the Maharashtra Municipal Corporations Act and Maharashtra Municipal Councils, Nagar Panchayats, Industrial Townships Act (Amendment) Act, 2022, Sections 2,3,4 5 and 6 of the Maharashtra Village Panchayat and the Maharashtra Zilla Parishad and Panchayat Samiti (Amendment Act), 2022; and Section 2 of the Mumbai Municipal Corporation (Amendment) Act, 2022.
"The thrust of the challenge is that under the constitutional scheme, the authority regarding delimitation ought to be with the State Election Commission. That has been taken away owing to the coming into force of the Amendment Act(s) with effect from 11.03.2022", noted the bench.
It stated that as regards this main question, deeper examination may be necessary for which these petitions must proceed for further hearing.
However, the bench called upon the counsel for the Maharashtra State Election Commission to explain as to why the elections in large number of local bodies (around 2486) across the State of Maharashtra, though overdue, and in some cases even overdue for two years, have not been taken forward despite the peremptory direction given by this Court vide successive orders, including the order dated 03.03.2022.
"The response of the State Election Commission was that it had taken steps in right earnest until the Amendment Act(s) came into force; and further until the delimitation is done by the State Government under the stated Amendment Act(s), it was not possible for it to proceed in the matter", noted the bench.
"In the background of this submission, we observe and hold that the process of delimitation being a continuous exercise may be continued by the State of Maharashtra, subject to the outcome of these petitions, but that would be relevant only for future elections after such exercise is completed. For that, the elections of local bodies (around 2486) which had become due on expiry of five years term and required to be conducted before expiry of such term in terms of Article 243-E and 243-U of the Constitution of India, including Sections 6 and 6(B) read with Section 452A(2) of the Maharashtra Municipal Corporation Act and related provisions in other enactments governing elections of local bodies, the conduct of elections of such local bodies cannot brook any delay. This mandate is exposited by the Constitution Bench of this Court in Kishansing Tomar Vs. Municipal Corporation of the City of Ahmedabad & Ors. reported in (2006) 8 SCC 352 (paras 12 to 14 and 22 to 28, in particular). Accordingly, the election programme of such local bodies must proceed and the State Election Commission is obliged to notify the election programme within two weeks from today in respect of such local bodies including to continue with the process from the stage as on 10.3.2022, on the basis of the delimitation done prior to coming into force of the Amendment Act(s) w.e.f. 11.03.2022", ordered the bench.
It clarified that in other words, the delimitation as it existed prior to 11.03.2022 in respect of concerned local bodies be taken as notional delimitation for the conduct of overdue elections and to conduct the same on that basis in respect of each of such local bodies.
"...the election programme of such local bodies must proceed and the State Election Commission is obliged to notify the election programme within two weeks from today in respect of such local bodies including to continue with the process from the stage as on 10.3.2022, on the basis of the delimitation done prior to coming into force of the Amendment Act(s) w.e.f. 11.03.2022.
In other words, the delimitation as it existed prior to 11.03.2022 in respect of concerned local bodies be taken as notional delimitation for the conduct of overdue elections and to conduct the same on that basis in respect of each of such local bodies".
It continued to observe that insofar as providing reservation for scheduled castes and scheduled tribes, the mandate of the Constitution and statutory provision must be followed; and in so far as other backward classes, compliance of triple test as predicated by this Court in Vikas Kishanrao Gawali v. State of Maharashtra reported in (2021) 6 SCC 73 must be adhered to.
"Absent such compliance, no reservation can be provided in the local bodies for that category which may go for elections with immediate effect in terms of this order", added the bench.
As requested by the counsel for the State, the bench placed on record that all steps taken by the State Election Commission and even the state government, on the basis of the directions given in terms of this order will be subject to the outcome of these proceedings.
"We make it clear that until the delimitation is done by the State Government in terms of Amendment Act(s) of 2022, the State Election Commission shall give effect to this order also in respect of upcoming elections in respect of local bodies which would become due by efflux of time", added the bench.
Listing these petitions/matters on 12.07.2022, the bench directed that the State Election Commission to file compliance report before the next date of hearing, and that in case of any difficulty, liberty is granted to the State Election Commission to apply before the returnable date and to ensure that election programme in respect of concerned local body is taken forward without any interruption.

Case Title: Rahul Ramesh Wagh v. The State of Maharashtra & Ors.

Click here to read/download the order

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