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 Panchayatsbe 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 theproportionate 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, theHon‟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
– 10 –
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
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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
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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.
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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 –