Legally Bharat

Jharkhand High Court

The State Of Jharkhand vs Roshini Khalkho on 12 September, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      L.P.A. No. 57 of 2024
                                 ----

1.The State of Jharkhand.

2.The Chief Secretary, having its Office at Project Building,
Dhurwa, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.

3.The Principal Secretary, Urban Development and Housing
Department, Jharkhand, Office at Project Building, Dhurwa,
P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.

… … Respondent No. 1, 2 and 3/Appellants
Versus

1.Roshini Khalkho, aged about 34 years, w/o Sujit Oraon,
r/o Circular Road, Nagra Toli, P.O. & P.S. Lalpur, District
Ranchi, Jharkhand.

2.Arun Kumar Jha, aged about 56 years, s/o Surendra Jha,
r/o Harmu Housing Colony, P.O. & P.S. Argora, District
Ranchi, Jharkhand.

3.Binod Kumar Singh, aged about 54 years, s/o Navlakh
Singh, r/o Vidya Nagar, P.O. Hehal, P.S. Sukhdeonagar,
District Ranchi, Jharkhand.

4.Sunil Kumar Yadav, aged about 49 years, s/o Misrilal
Yadav, r/o Upper Bajar, Ranchi, P.O. Upper Bajar,
P.S.Kotwali, District Ranchi, Jharkhand.

                       ...     ... Writ Petitioners/Respondents
5.The      Municipal      Commissioner,    Ranchi     Municipal

Corporation, Ranchi, Office at Near Kutchhary Chowk,
Ranchi, P.O GPO, P.S. Kotwali, District Ranchi.

… …Respondent No. 4/Respondent
with
L.P.A. No. 55 of 2024

—-

1.The State of Jharkhand through the Chief Secretary, having
its Office at Project Building, Dhurwa, P.O. & P.S. Dhurwa,
District Ranchi, Jharkhand.

2.The Secretary, Town Development and Housing
Development, Jharkhand, Office at Project Building, Dhurwa,
P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.

… … Respondent No. 1 and 3/Appellants
Versus

1.Rina Kumari, aged about 43 years, wife of Arvind Kumar
Mandal, resident of: Ward No. 9, Ghandhi Kutir, P.O. & P.S.
Jamtara, District Jamtara, Jharkhand..

… … Writ Petitioner/Respondent

2.The Election Commissioner, State Election Commission,
Jharkhand, Nirwachan Bhawan, New Market Chowk, Ratu
Road, P.O. + P.S. Sukhdeonagar, Ranchi
… …Respondent No. 2/Respondent

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——-

CORAM: HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE ARUN KUMAR RAI

——

For the Appellants : Mr. Sachin Kumar, AAG-II
For the Respondents: Mr. Prashant Kumar Singh, Advocate
Mr. Binod Singh, Advocate
[In LPA. No. 57 of 2024]
For the Election Commission:

Mr. Sumeet Gadodia, Advocate

——–

CAV on 28/08/2024 Pronounced on 12/09/2024
Per Sujit Narayan Prasad, ACJ:

1. Since the issues involved in the both the intra-court

appeals are identical, as such with the consent of learned

counsel for the parties, the same were heard together and are

being disposed of by this common order.

Prayer:

2. The instant intra-court appeals, under clause 10 of the

Letters Patent, are directed against common order/judgment

dated 04.01.2024 passed by learned Single Judge of this

Court in W.P.(C) No. 1923 of 2023 with W.P.(C) No. 2290 of

2023, whereby and whereunder while allowing the writ

petitions, the State Government was directed to notify the

elections, immediately on receipt of the recommendation of

the State Election Commission, in relation to Municipal

Corporation, Municipalities and Nagar Panchayats in the

State of Jharkhand and further directed the State to ensure

all facilities so that the democratic process of election of

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Municipal Corporation, Municipalities and Nagar Panchayats

be not hampered or hindered by any means.

Factual Matrix:

3. The brief facts of the case, as per the pleadings made in

the writ petitions, reads as under:

4. The petitioner, in writ petition being WP(C) No.1923 of

2023, which subject matter of L.P.A. No. 55 of 2024, has

made a prayer for direction upon the respondents-State to

immediately and forthwith notify the election process for

Nagar Panchayat, Jamtara, as the term of Nagar Panchayat,

Jamtara was to expire in May 2023. In alternate, prayer has

been made that if the elections are not notified and could not

be held before the expiry of the term of the Nagar Panchyat,

the seating members be allowed to function till the fresh

elections are held. Further prayer has been made to quash

the order by which, after expiry of the term of Nagar

Panchayat, Jamtara, Administrator has been appointed.

5. Likewise, the writ petitioners in WP(C) No. 2290 of 2023,

which is the subject matter of L.P.A. No. 57 of 2024, has

made a prayer for a direction to hold election of Ranchi

Municipal Corporation in view of the mandate under Article

243(U) of the Constitution of India and also in terms of

Section 16(4) and 20 of the Jharkhand Municipal Act, 2011,

since five years term of the elected body has already expired

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on 27.04.2023. Further prayer has been made to quash the

Notification No. 1680 dated 28.4.2023, whereby

administrator has been appointed for administering the

activities of the municipality, after expiry of the term of the

elected members.

6. In sum and substance, in both writ petitions, the prayer

has been made for a direction upon the respondents

(appellants herein) to notify the election of Municipal

Corporations, Municipalities and Nagar Panchayats and

alternatively, i.e., the seating members be allowed to function

till the fresh elections are held.

7. Learned counsel for the writ petitioner during the

course of argument has brought to the notice of this Court

that in the entire State of Jharkhand, the term of all the

Nagar Panchayats and Municipalities have come to an end

and all these bodies are administered by Administrators in

place of any elected body.

8. The learned Single Judge, after hearing learned counsel

for the parties and taking note of the constitutional mandate

and law laid down by the Hon‟ble Apex Court, allowed the

writ petitions directing the State Government to notify the

elections, immediately on receipt of the recommendation of

the State Election Commission, in relation to Municipal

Corporation, Municipalities and Nagar Panchayats in the

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State of Jharkhand and further directed the State to ensure

all facilities so that the democratic process of election of

Municipal Corporation, Municipalities and Nagar Panchayats

be not hampered or hindered by any means.

9. It is evident from the factual aspects that the election of

Deoghar Municipal Corporation, Dhanband Municipal

Corporation and Chas Municipal Corporation was held in the

months of May-June, 2015 and even after expiry of the

tenure of the elected mayors as well as ward counselor on

18.06.2020, there was no election.

10. Further, the election of Ranchi Municipal Corporation

and other 34 urban local bodies which were held in the year

2018 and the tenure of the representatives including the

Mayors, Chairpersons and Ward Counselors came to end on

27.04.2023 but there was no endeavor on the part of the

State to conduct election for the purpose of election of mayors

as well as ward counselor of the urban local bodies, as such

in the backdrop of these facts, writ petitions have been filed

for issuance a direction upon the respondents to notify the

election of Municipal Corporation, Municipality and Nagar

Panchayat so as to achieve the object and intent of Article

243(U) of the Constitution of India as well as provision of

16(4) and 20 of the Jharkhand Municipal Act, 2011 and

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alternatively, i.e., till elections are not notified the seating

members be allowed to function.

11. The learned writ Court has called the State as also the

State Election Commission.

12. The State has taken the plea that in terms of the

judgment rendered by Hon‟ble Apex Court in the case of

Vikas Kishanrao Gawali V. State of Maharashtra,

reported in (2021) 6 SCC 73, the “triple test formalities” had

to be conducted and completed for identifying seats for Other

Backward Classes (OBC) for reservation. The ground has

been taken that without identifying the seats to be reserved

for OBCs with the “tripe test formalities”, no election of the

local bodies can be held. If the elections are held without

reserving seats for OBC, the same will create problem and

will amount to depriving the OBC.

13. The State Election Commission has come out with the

stand that the State Election Commission had already taken

a decision and had recommended holding of election of

Municipal Corporation, Municipalities and Nagar Panchayat,

not only once but twice and the State had once notified the

same but cancelled the said notification and on the second

occasion, they did not even bothered to notify the same as

such no election has been notified by the State Election

Commission.

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14. The learned writ Court, has taken into consideration the

constitutional mandate, as stipulated in part IX-A of the

Constitution of India which deals with Municipalities and

further putting reliance upon the judgment rendered in the

case of Suresh Mahajan Vs. State of M.P. reported in

(2022) 12 SCC 770; K. Krishna Murthy (Dr.) and Others

Vs. Union of India and Another, reported in (2010) 7 SCC

202 and judgment rendered in the case of Vikas Kishanrao

Gawali V. State of Maharashtra (supra) has directed the

State Government to notify the elections, immediately on

receipt of the recommendation of the State Election

Commission, in relation to Municipal Corporation,

Municipalities and Nagar Panchayats in the State of

Jharkhand and further directed the State to ensure all

facilities so that the democratic process of election of

Municipal Corporation, Municipalities and Nagar Panchayats

be not hampered or hindered by any means, which is the

subject matter of instant intra-court appeals.

Argument on behalf of appellants-State:

15. Mr. Sachin Kumar, learned A.A.G. II appearing for the

appellants-State has challenged the order passed by learned

writ Court on the following grounds:

I. That the learned Single Judge has not appreciated

the factual aspect regarding the issue of “triple test

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formalities”, which is meant to secure the

proportionate reservation in the local bodies to the

members of the Other Backward Classes (OBC),

which is under process by virtue of issuance of

notification by the State Government.

II. The specific plea was taken before the learned

Single Judge that in absence of the census based

upon the caste of the OBC, the considerable right of

the members of the OBC will not be considered rather

they will be deprived from the right to contest the

election as per the mandate since the object of the

“triple test formalities” is to reserve the seats for OBC

category.

III. The ground has been taken that the Hon‟ble

Apex Court has also taken into consideration the

aforesaid aspect of the matter in the case of Chandra

Prakash Choudhary Vs. The State of Jharkhand

& Anr. [Writ Petition (s) (Civil) No(s). 239 of 2022]

wherein the State has apprised the Hon‟ble Apex

Court that State has already initiated triple test

process as laid down by the Hon‟ble Apex Court in K.

Krishna Murthy (Dr.) and Others Vs. Union of

India and Another (supra) and reiterated in the case

of Vikas Kishanrao Gawali V. State of

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Maharashtra (supra) in that view of the matter, the

Hon‟ble Apex Court has made an observation that

upon completion of that process for future elections,

the State may take necessary steps and consider of

providing such reservation.

IV. It has further been contended that by taking

into consideration the aforesaid fact, the Hon‟ble

Apex Court has been pleased to observe that upon

completion of that process for future elections, the

State may take necessary steps and consider of

providing such reservation.

V. It has been contended that the Hon‟ble Apex Court

is also of the view that before conducting the

elections, the requirement as carved out in the

judicial pronouncements of the Hon‟ble Apex Court

regarding providing reservation to the OBCs is

required to be fulfilled. But the aforesaid fact has not

been taken into consideration by the learned Single

Judge in the impugned order.

16. Learned counsel for the State on the aforesaid grounds

has submitted that the order passed by learned Single Judge

needs interference by this Court.

Submission on behalf of the learned counsel for the writ

petitioners:

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17. Learned counsel for the respondents-writ petitioners

have jointly defended the order passed by learned Single

Judge by raising the following grounds:

I. The learned Single Judge has passed the order

directing the State to notify the election for local

urban bodies, which cannot be said to suffer from an

error reason being that the very object of the

constitutional amendment as inserted by 74th

Amendment Act, 1992, which enjoins upon the State

to establish a three-tier system of municipalities in

the urban areas and if any ground(s) whatsoever, the

election is not conducted then it will be said to be

non-compliance of the constitutional mandate.

II. It has been submitted that the learned Single

Judge has taken into consideration the aforesaid

aspect of the matter and by putting reliance upon the

judgment rendered in the case of Suresh Mahajan

Vs. State of M.P. (supra); K. Krishna Murthy (Dr.)

and Others Vs. Union of India and Another,

(supra) and judgment rendered in the case of Vikas

Kishanrao Gawali V. State of Maharashtra

(supra) has passed direction upon the State to notify

the elections, immediately on receipt of the

recommendation of the State Election Commission, in

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relation to Municipal Corporation, Municipalities and

Nagar Panchayats in the State of Jharkhand, thus it

cannot be said that the judgment passed by the

learned Single Judge suffers from an error.

III. It has been contended that the ground which

has been agitated in assailing the impugned

judgment passed by learned Single Judge is the order

passed by Hon‟ble Supreme Court in the case of

Chandra Prakash Choudhary Vs. The State of

Jharkhand & Anr. (supra) although the said

judgment/order has not laid down any proposition

rather it is an order passed on the backdrop of the

fact that when the State has apprised the Hon‟ble

Apex Court that State has already initiated triple test

process as laid down by this Court in K. Krishna

Murthy (Dr.) and Others Vs. Union of India and

Another (supra) and reiterated in the case of Vikas

Kishanrao Gawali V. State of Maharashtra

(supra) in that view of the matter, the Hon‟ble Apex

Court has made an observation that upon completion

of that process for future elections, the State may

take necessary steps and consider of providing such

reservation.

– 11 –

IV. It has been contended that the very purport of

the said order is that the process which has begun for

„triple test formality‟, the election will not wait for the

conclusion of the said formalities rather the said

formality will be concluded, the same will be taken

into consideration for future elections.

V. It has been contended that the purport of the said

order cannot be for the purpose of withholding the

election otherwise the very mandate of 74th

amendment of the Constitution of India by which the

Article 243 U has been inserted, will not be frustrated

but it will be violation of the constitutional mandate

and contrary to the set-up of the three-tier

democratic system.

18. Learned counsel for the writ- petitioners on the

aforesaid pretext has submitted that order passed by the

learned Single Judge suffers from no error and as such

requires no interference by this Court.

Analysis:

19. We have heard learned counsel for the parties, gone

across the finding recorded by learned Single Judge in the

impugned order.

20. This Court, before entering into the legality and

propriety of the impugned order, deems it fit and proper to

– 12 –

refer the idea behind insertion of Article 243 U by virtue of

74th Amendment Act, 1992.

21. It need to refer herein that the 73rd and the 74th

Constitutional Amendment Acts, 1992 enjoin upon the states

to establish a three-tier system of Panchayats at the village,

intermediate and district levels; and Municipalities in the

urban areas respectively. States are expected to devolve

adequate powers, responsibilities and finances upon these

bodies so as to enable them to prepare plans and implement

schemes for economic development and social justice. These

Acts provide a basic framework of decentralization of powers

and authorities to the Panchayati Raj/Municipal bodies at

different levels.

22. The Statement of Objects and Reasons of the

Constitution (74th Amendment) Act, 1992, briefly outlined

the object and purpose for which the Constitution

Amendment was brought in. It is useful to refer to the

Statement of Objects and Reasons of the Constitution

Amendment which is to the following effect:

“Statement of Objects and Reasons

1. In many States local bodies have become weak and
ineffective on account of a variety of reasons, including the
failure to hold regular elections, prolonged supersession 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.

2. Having regard to these inadequacies, it is considered

– 13 –

necessary that provisions relating to urban local bodies are
incorporated in the Constitution particularly for–

(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.”

23. The further object of introducing Part IX-A was that in

many States the local bodies were not working properly, and

timely elections were not being held and 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.

24. The Hon‟ble Apex Court while noticing the object and

purpose of the Constitution (74th Amendment) Act, 1992 in

the case of Kishansing Tomar v. Municipal Corpn.,

Ahmedabad, (2006) 8 SCC 352] has observed as under:

“12. It may be noted that Part IX-A was inserted in the
Constitution by virtue of the Constitution (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

– 14 –

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 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….”

25. Further the Hon‟ble Apex Court in the case of NOIDA v.

CIT, (2018) 9 SCC 351 had categorically observed that the

Municipalities are created as vibrant democratic units of self-

government and the duration of Municipality was provided for

five years contemplating regular election for electing

representatives to represent the Municipality.

26. For ready reference the relevant paragraph of the

aforesaid judgment is being quoted as under:

28. The constitutional provisions as contained in Part IX-A
delineate that the Constitution itself provided for constitution
of Municipalities, duration of Municipalities, powers of
Authorities and responsibilities of the Municipalities. The
Municipalities are created as vibrant democratic units of self-

government. The duration of Municipality was provided for
five years contemplating regular election for electing
representatives to represent the Municipality….”

27. Thus, from the aforesaid discussion it is evident that the

provisions introduced vide Part IX-A were intended to restore

the local bodies to their rightful place in political governance.

It was considered necessary to provide a constitutional status

– 15 –

to such bodies and to ensure regular and fair conduct of

elections. Part IX-A also provides for constitution of

Municipalities (Article 243-Q), composition of Municipalities

(Article 243-R), reservation of seats (Article 243-T), duration

of Municipalities (Article 243-U), powers, authority and

responsibilities of Municipalities (Article 243-W), powers to

impose taxes by, and funds of the Municipalities (Article 243-

X), and audit of accounts of Municipalities (Article 243-Z).

Further, the aforesaid part also introduces provisions relating

to election (Article 243-ZA).

28. Further, the 74th Constitutional Amendment Act

authorized the State Legislatures to enact laws to endow local

bodies with powers and authority as necessary to enable

them to function as institutions of Self-Government and

make provisions for devolution of powers and responsibilities

so as to enable the local bodies to prepare plans and

implement schemes for economic development and social

justice.

29. Thus, it is evident that this Act provides a basic

framework of decentralization of powers and authorities to

the Municipal bodies at different levels. However,

responsibility for giving it a practical shape rests with the

States. States are expected to act in accordance with the

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spirit of the Acts for establishing a strong and viable system

of Local Self-Government.

30. The Hon‟ble Apex Court in the case of Suresh Mahajan

Vs. State of M.P. (supra) has specifically held that the

constitutional mandate is inviolable. Neither the State

Election Commission nor the State Government or the State

Legislature including the court in exercise of Article 142 of

the Constitution of India can countenance dispensation to

the contrary. For ready reference, paragraph 8 of the

aforesaid judgment is quoted as under:

“8.This constitutional mandate is inviolable. Neither the State
Election Commission nor the State Government of for that
matter the State Legislature, including this Court in exercise
of powers under Article 142 of the Constitution of India can
countenance dispensation to the country.”

31. It is, thus, evident that the constitutional mandate as

per insertion in Part IX-A by way of 74th Amendment Act,

1992, the three tier system has been set up with the object

and reasons that in many States local bodies have become

week and ineffective on account of variety of reasons

including failure to held elections, prolonged supersession

and inadequate devolution of powers and functions, as such

in the aforesaid backdrop and the underlying idea that the

local bodies is not working properly, and timely elections were

not being held and nominated bodies were continuing for long

– 17 –

periods, the Constitution has been amended by way of 74th

Amendment Act, 1992.

32. The very object of the insertion of Article been dealt with

by Hon‟ble Apex Court in the case of Kishansing Tomar v.

Municipal Corpn., Ahmedabad (supra) wherein at

paragraph 12 it has been observed that 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. Therefore, it was considered necessary to provide

a constitutional status to such bodies and to ensure regular

and fair conduct of elections.

33. The said view has also been reiterated in the case of

NOIDA v. CIT (supra) wherein it has categorically been

observed that the Municipalities are created as vibrant

democratic units of self-government and the duration of

Municipality was provided for five years contemplating

regular election for electing representatives to represent the

Municipality.

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34. Different provisions have been inserted as under Part

IX A to restore the local bodies to their rightful place in

political governance. Part IX-A Article 243-Q of the

Constitution provides for constitution of Municipalities;

Article 243-R provides composition of Municipalities; Article

243-T provides reservation of seats; Article 243-U provides

duration of Municipalities; Article 243-W provides powers,

authority and responsibilities of Municipalities; Article 243-X

powers to impose taxes by, and funds of the Municipalities;

Article 243-Z says about audit of accounts of Municipalities.

Further, the aforesaid part also introduces provisions relating

to election as under Article 243-ZA.

35. The provisions of Article 243-ZF are pari materia to the

provisions of Article 243-N, insofar as it provides that any

provision of a law relating to Municipalities in a State

immediately before the commencement of the 74th

Amendment, which is inconsistent with the provisions of Part

IX-A shall continue to be in force until amended, repealed or

until expiration of one year from the date of commencement

of the Amending Act.

36. It needs to refer herein that after the said Amendment

Act, due amendment has been brought in the statute by way

of Jharkhand Municipal Act, 2011, which contains various

provisions including Section 16 [Constitution of Council],

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which says that all the seats specified in clause 2(a) shall be

filled by direct elections and for this purpose each municipal

area shall be divided into territorial constituencies referred as

Wards.

37. Section 16, Clause 2(a) thereof speaks that in every

council, as nearly as possible but not exceeding fifty percent

of the total seats of elected members shall be reserved for

(i).Scheduled Castes; (ii).Schedules Tribes; (iii).Backward

Classes; and (iv).Women.

38. It is, thus, evident that provision has been carved out by

virtue of Act to provide the benefit of reservation to the

Scheduled Castes; Schedules Tribes; Backward Classes; and

Women. Further in view of aforesaid provision, Section 20

provides as contained in Jharkhand Municipal Act, 2011,

that the term of the councilors will be five years from the date

of first meeting of the municipality under Section 73 or

depending upon the other eventuality as contained under

Condition No. (a) or (b).

39. It is thus evident that under the amended rule, which

has been brought after insertion of Part IX-A by way of 74th

Constitution Amendment, the election of urban local bodies

has to be conducted before the expiry of five years so that

newly elected body shall be in office after expiry of five years

term.

– 20 –

40. Now, adverting to the factual aspect which led to filing of

the writ petitions seeking a direction to notify the elections,

immediately on receipt of the recommendation of the State

Election Commission, in relation to Municipal Corporation,

Municipalities and Nagar Panchayats in the State of

Jharkhand, it is admitted by the parties that in the entire

State of Jharkhand, the term of all the Nagar Panchayats and

Municipalities have come to an end and all these bodies are

administered by Administrators in place of any elected body.

41. The writ petitioners, in the aforesaid backdrop, have

approached this Court for a direction upon the respondents

to notify the election of Municipal Corporation, Municipality

and Nagar Panchayat and alternatively, i.e., till elections are

not notified the seating members be allowed to function till

the fresh elections are held.

42. It is evident from the affidavit filed on behalf of the

respondent-State Election Commission that twice

recommendations were made by the State Election

Commission for holding election of Municipal Corporation,

Municipalities and Nagar Panchayat. The State had once

notified the same but cancelled the said notification and on

the second occasion, the State even did not bother to notify

the same.

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43. The learned writ Court has passed order taking into

consideration the very purport/object/intent of the 74th

Constitutional Amendment to have the three-tier system as

also the rule formulated by the State of Jharkhand, as per

the requirement of the 74th amendment for conducting of the

election of urban local bodies, the period of the said bodies

will be of five years.

44. The learned Single Judge has also taken into

consideration the fact which has been raised on behalf of

State with respect to the issue of “triple test formalities” and

while weighing the balance and basing upon the judgment

rendered in the case of Suresh Mahajan Vs. State of M.P.

(supra), wherein it has been laid down that the constitutional

mandate is inviolable. Neither the State Election Commission

nor the State Government nor the State Legislature including

the court in exercise of Article 142 of the Constitution of India

can countenance dispensation to the contrary.

45. The Hon’ble Supreme Court in the case of Suresh

Mahajan (Supra), considering all the aspects has held that

the election can very well be held and non-compliance of

“triple test formalities” cannot come in the way to hold

election.

46. It is evident that in the case of Suresh Mahajan

(supra), the issue of reservation of OBC’s seat had cropped

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up, which was in fact considered and a direction was given to

the State to hold election, even if the “tripe test formalities”

remained to be fulfilled. In the aforesaid judgment, the

Hon’ble Supreme Court has done away with the said

impediment. The situation is not different here.

47. The Hon’ble Supreme Court in the aforesaid case at

paragraph 9 had taken into consideration of the fact that a

large number of local bodies are functioning without elected

representatives and held that this is bordering on breakdown

of rule of law and more so, palpable infraction of the

Constitutional Mandate.

48. For ready reference, paragraph 9 of the judgment is

quoted as under:

“9. Despite such constitutional mandate, the reality in the
State of Madhya Pradesh as of now, is that, more than
23,263 local bodies are functioning without the elected
representatives for last over two years and more. This is
bordering on breakdown of rule of law and more so, palpable
infraction of the constitutional mandate qua the existence
and functioning of such local self-government, which cannot
be countenanced.”

49. Further at paragraph 11, the Hon’ble Supreme Court

has held that even any amendment effected to enactments

also cannot be reckoned as a legitimate ground for

protracting the issue of election programme of the local

bodies concerned. It is necessary to quote paragraph 11 of

the judgment, which reads as under:

– 23 –

“11 In any case, the ongoing activity of delimitation or
formation of ward cannot be a legitimate ground to be set
forth by any authority much less the State Election
Commission to not discharge its constitutional obligation in
notifying the election programme at the opportune time and
to ensure that the elected body is installed before the expiry
of 5 (five) years’ term of the outgoing elected body. If there is
need to undertake delimitation — which indeed is a
continuous exercise to be undertaken by the authority
concerned — it ought to be commenced well in advance to
ensure that the elections of the local body concerned are
notified in time so that the elected body would be able to
take over the reigns of its administration without any
disruption and continuity of governance (thereby upholding
the tenet of the Government of the people, by the people and
for the people). In other words, the amendment effected to
the stated enactments cannot be reckoned as a legitimate
ground for protracting the issue of election programme of the
local bodies concerned.”

50. So far as “triple test formalities” is concerned, at

paragraph 13 the Hon’ble Supreme Court has observed that

non-compliance of the triple test formality cannot be a

ground to defer the election.

51. For ready reference, paragraph 13 of the said judgment,

reads as under:-

“13. For, until the triple test formality is completed “in all
respects” by the State Government, no reservation for Other
Backward Classes can be provisioned; and if that exercise
cannot be completed before the issue of election programme
by the State Election Commission, the seats (except reserved
for the Scheduled Castes and Scheduled Tribes which is a
constitutional requirement), the rest of the seats must be
notified as for the General category.”

– 24 –

52. Thus, it is evident from the aforesaid paragraphs of the

judgment rendered in Suresh Mahajan (surpa), that the

Election should be notified even if the “triple test formalities”

has not yet been completed. It is, thus, clear that elections

can be held even if “triple test formalities” is under process

and/or has not yet been completed. Non-completion of the

“triple test formalities‟ for identifying seats to be reserved for

OBCs is not at all a ground to defer or delay election of local

self-government.

53. Thus, in view of the judgment rendered in the case of

Suresh Mahajan (Supra), it emanates that it is the

constitutional duty of the State Election Commission to

recommend for holding of Election in the Municipal

Corporation, Municipalities and Nagar Panchayat, not only

for Ranchi Municipal Corporation and Jamtara Nagar

Parishad, but also for all the other Municipalities, within the

State of Jharkhand, whose term has come to an end.

54. However, learned counsel for the State has relied upon

the judgment rendered by Hon‟ble Apex Court in the case of

K. Krishna Murthy (Dr.) and Others Vs. Union of India

and Another (supra), wherein it has been held therein that

exercise has to be undertaken to identify the seats to be

reserved for the OBCs for that purpose triple test formality

has to be conducted.

– 25 –

55. Further reliance has been placed on the case of Vikas

Kishanrao Gawali V. State of Maharashtra, (supra),

wherein the Hon‟ble Apex Court has observed that the “triple

test formalities” had to be conducted and completed for

identifying seats for Other Backward Classes (OBC) for

reservation. However, it has further been held therein that

without identifying the seats to be reserved for OBCs with the

“tripe test formalities”, no election of the local bodies can be

held. It has further been observed that if the elections are

held without reserving seats for OBC, the same will create

problem and will amount to depriving the OBC.

56. Relying upon said judgments, the instant intra-court

appeals have been preferred by the State on the ground that

the formality of triple test has not been concluded, as such

election would be held only after completion of triple test

formalities and if during the aforesaid course the election will

be notified, the members of the OBCs will be deprived from

their right to get the benefit of reservation.

57. It is not in dispute that the mandate of the Constitution

is to be prevailed upon all the statutory command on the

principle that the constitution is above all the statute and all

the statute which has been formulated is to remain

consistent with the constitutional mandate.

– 26 –

58. Further, if any provision has been made under the

Constitution, then the same binds everybody including the

Court of law and each and every of the country. The mandate

of 74th amendment by insertion of Part IX A in the

Constitution of India is the core consideration which is to be

considered in the instant appeals.

59. We are living in a democratic set-up wherein the election

is the soul of the system for the purpose of electing the

representatives to govern the State said to be governance by

the people by its elected representatives.

60. The election for the parliament or the State legislature

has also been mandated to be conducted prior to the expiry of

five years so that in no stretch of imagination the tenure of

the elected members either of the Parliament or the State

Legislative Assembly be allowed to be exceeded to the period

of five years. If the election will not be conducted within the

expiry of 5 years, then the very fundamental of the

democratic set up, which is the soul of our Constitution will

lose its force and the democracy will come to end.

61. The same principle, according to our considered view, is

applicable in the facts of election of the people‟s

representative in the local bodies and then only it will be said

that the mandate of 74th Constitutional Amendment Act,

1992 to be achieved.

– 27 –

62. The question, which is raised by the State regarding

depriving of the right of the members of the OBCs in absence

of the completion of „triple test formalities‟ as mandated by

Hon‟ble Apex Court in the case of Vikas Kishanrao Gawali

V. State of Maharashtra, (supra) wherein it has been held

that the “triple test formalities” had to be conducted and

completed for identifying seats for Other Backward Classes

(OBC) for reservation. The ground has been taken that

without identifying the seats to be reserved for OBCs with the

“tripe test formalities”, no election of the local bodies can be

held. If the elections are held without reserving seats for

OBC, the same will create problem and will amount to

depriving the OBC.

63. Therefore, the question which requires consideration as

to whether in the garb of non-conclusion of “tripe test

formalities” the entire democratic set-up to have the three-tier

system in the urban areas, will be permissible?

64. This Court is of the view that the same is not

permissible and cannot be permissible for the reason that

principle of “tripe test formalities” is the principle laid down

so as to give the benefit of reservation to the OBCs. The

aforesaid principle has been adopted by the State of

Jharkhand way back in the year 2011 by formulating rule in

this regard, namely, Jharkhand Municipality Act, 2011 but

– 28 –

no endeavor has been taken by the State conclude the “triple

test formalities” during the subsistence period of tenure of

elected members of urban local bodies as the election of

Deoghar Municipal Corporation, Dhanbad Municipal

Corporation and Chas Municipal Corporation was held in the

months of May-June, 2015 and even after expiry of the

tenure of the elected mayors as well as ward counselor on

18.06.2020, no election was held. Further, the election of

Ranchi Municipal Corporation and other 34 urban local

bodies which were held in the year 2018 and the tenure of

the representatives including the Mayors, Chairpersons and

Ward Counselors came to end on 27.04.2023 but there was

no endeavor on the part of the State to conduct election for

the purpose of election of mayors as well as ward counselor of

the urban local bodies.

65. The State is taking the ground that due to non-

conclusion of the “tripe test formalities” if the election will be

allowed to be conducted then the members of the OBCs will

suffer from the benefit of reservation.

66. The question is that when the Hon‟ble Supreme Court in

the case of Suresh Mahajan Vs. State of M.P. (supra) as

under paragraph 8 has laid down that neither the State

Election Commission nor the State Government or the State

Legislature including the court in exercise of Article 142 of

– 29 –

the Constitution of India can countenance dispensation to

the contrary. Therefore, the how can State take the plea that

due to non-conclusion of the „triple test formalities‟ the

election is not being conducted.

67. If the contention of the State is accepted, then the

question is that what would be the proposition laid down by

Hon‟ble Apex Court in the case of Suresh Mahajan Vs. State

of M.P. (supra) in view of provision of Article 142 of the

Constitution of India will become law of land.

68. It is not in dispute the Apex Court has also laid down

the law to conduct the “triple test formalities” but the State

having not concluded or slow in conducting the same, will not

be considered to be coming in the way of the object and

intent of the 74th Constitutional Amendment Act.

69. The answer of this Court will be in affirmative reason

being that we all are duty bound to follow the constitutional

mandate and there cannot be any deviation with the same. If

any deviation from the constitutional mandate will be there

then the entire system will collapse.

70. We are conscious that nobody will be allowed to break

the basic structure of the Constitution of India, which is the

soul of the Constitution as mentioned in the preamble

making the State a democratic country where country is to be

governed by the representative of the people. However, at the

– 30 –

time when the Constitution was adopted there were two-tier

system but subsequently when it was felt necessary, that

there must be three tier system in the rural and urban areas,

it led in coming with 73rd Amendment and 74th Amendment.

71. The 73rd Amendment established the Panchayati Raj

System in the rural areas. This Amendment added Part IX

and 11th Schedule to the Constitution and made the State

Governments legally obligated to adopt the new system.

Whereas 74th amendment established municipality system in

urban area. This amendment added IX-A and 12th Schedule

to the Constitution, and granted the municipalities

constitutional status.

72. It has further been clarified in the said constitutional

provision that if any saving is with the rule in consistent to

the aforesaid constitutional mandate, then the State is

required to amend or repeal the rule and till its repealment

the existing rule will prevail.

73. Here, in the State of Jharkhand the Act has already

been amended in the year 2011 and subsequently the Rule

2012 was promulgated. Thereafter, the election has also been

conducted. The tenure of the same has been expired.

74. The State when has formulated the rule making

provision for conducting the electing after every five years,

and rule also provides provision for giving benefit to the

– 31 –

members of the OBCs then the question is that why the State

is so lethargic in concluding the triple test formalities. If the

State is not pursuing the matter diligently in concluding the

triple test formalities, then there is no occasion to flout the

constitutional mandate by not conducting the election.

75. The Hon‟ble Apex Court while laying down the law with

respect to „triple test formalities‟ cannot be construed to be in

obstruction of conducting election rather the Hon‟ble Apex

Court while issuing direction upon the State to have „triple

test formality‟ is also for the purpose to achieve the

constitutional mandate to have the benefit of reservation to

the members of OBCs but it does not mean that due to

lethargic approach of the State the very mandate of the 74th

Constitutional amendment will be allowed to be frustrated.

76. This Court, after having discussed the legal aspect and

coming to the judgment/order passed by learned Single

Judge, has found that thoughtful consideration has been

given regarding the underlying object of the 74th amendment

based upon the consideration of the judgment passed by

Hon‟ble Apex Court in the case of Suresh Mahajan Vs. State

of M.P. (supra); K. Krishna Murthy (Dr.) and Others Vs.

Union of India and Another, (supra) and judgment

rendered in the case of Vikas Kishanrao Gawali V. State of

Maharashtra (supra) as also the issue of triple test formality

– 32 –

and casting aspersion against the State, the learned Single

Judge has come to the conclusion that not notifying to

conduct election cannot be said to be in consonance with the

constitutional mandate that too when the State Election

Commission has recommended for holding election of

Municipal Corporation, Municipalities and Nagar Panchayat.

The State had once notified the same but cancelled the said

notification and on the second occasion, the State even did

not bother to notify the same.

77. The learned Single Judge, based upon the aforesaid

aspect of the matter, has observed that the Government

cannot sit over the recommendation of the State Election

Commission and throttle the voice of the people. In fact, the

process of election should have started much before the term

of sitting members came to an end.

78. So far, the issue of ad hoc arrangement of appointment

of administrator in terms of Section 16(8) of the Jharkhand

Municipal Act, 2011 is concerned, the learned Single Judge

has observed that it is absolutely a temporary arrangement

and such temporary arrangement cannot be allowed to

continue for long. Thus, it is more important to hold election

at the earliest. The basic tenet: – “Government by the people,

of the people and for the people” is to be applied, reinforced

and implemented in true letter and spirit. Running these

– 33 –

constitutional bodies by an administrator defies this basic

tenet of democracy.

79. In the aforesaid backdrop, it needs to refer herein that

the famous utterances of Abraham Lincoln‟s closing remarks

of his short yet famous Gettysburg Address of November 19,

1863, have become proverbial as “Government of the people,

by the people, for the people” which has been quoted by the

learned Single Judge, indeed provides a most succinct

definition of democracy.

80. The word democracy comes from the Greek words

“demos”, meaning people, and “kratos” meaning power; so

democracy can be thought of as “power of the people”: a way

of governing which depends on the will of the people.

Democracy, then, is not autocracy or dictatorship, where one

person rules; and it is not oligarchy, where a small segment

of society rules. A democracy, at least in theory, is

government on behalf of all the people, according to their

“will”. The most obvious ways to participate in government

are to vote, or to stand for office and become a representative

of the people.

81. Elections are an integral part of democracy, allowing

individuals to participate in the selection of their

representatives. Elections provide an opportunity for citizens

to exercise their right to vote and have a say in the

– 34 –

governance at the central, state and local level. Therefore,

while elections play a significant role in democracy, but it is

to be supported by strong democratic institutions.

82. This Court, in view of above and considering the object

and intent of 74th amendment, is of the view that there

cannot be a different view other than the view taken by

learned Single Judge, who has directed the State to notify the

elections, immediately on receipt of the recommendation of

the State Election Commission, in relation to Municipal

Corporation, Municipalities and Nagar Panchayats in the

State of Jharkhand and further directed the State to ensure

all facilities so that the democratic process of election of

Municipal Corporation, Municipalities and Nagar Panchayats

be not hampered or hindered by any means.

83. Therefore, this Court is of the view that both the appeals

lack merit.

84. Accordingly, both the instant appeals fail and are

dismissed.

85. Pending Interlocutory Application, if any, stands

disposed of.

(Sujit Narayan Prasad, A.C.J.)

(Arun Kumar Rai, J.)
Alankar/ A.F.R

– 35 –

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