Local Body Elections Can Be Held Without Completing 'Triple Test Formalities' For Identifying OBC Seats: Jharkhand High Court

Justice Ananda Sen observed, “the Hon'ble Supreme Court directed that the Election should be notified even if the “triple test formalities” has not yet been completed. From the aforesaid judgment, the issue has been set at rest and now as per the judgment, it is not sine qua non to conclude the “triple test formalities” before holding elections for a local body.”

“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,” Justice Sen added.

The above ruling came in a set of two writ petitions whereby the petitioners sought a direction upon the respondents to notify the election of Municipal Corporation, Municipality and Nagar Panchayat.

[For context, in the Vikas Kishanrao Gawali case, the Apex Court had noted that a triple test is to be followed before provisioning reservation for the OBC category. The said triple test involves:

(1) setting up a dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;

(2) specifying the proportion of reservation required to be provisioned local body-wise in light of recommendations of the Commission, so as not to fall foul of overbreadth; and

(3) not exceeding an aggregate of 50 percent of the total seats reserved in favour of SCs/STs/OBCs taken together.]

In the first petition, the petitioner sought for a mandamus directing the State to immediately and forthwith notify election process for Nagar Panchayat, Jamtara, as the term of Nagar Panchayat, Jamtara was to expire in May 2023. Further prayer was 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. A prayer has also been made by way of amendment to quash the order by which, after expiry of the term of Nagar Panchayat, Jamtara, Administrator has been appointed.

In the second petition, the petitioner sought 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 on 27.04.2023. Further prayer has been made to quash the Notification No. 1680 dated 28.4.2023, issued by respondent No. 4 whereby administrator has been appointed for administering the activities of the municipality, after expiry of the term of the elected members

After hearing the parties and considering their submissions, the Court observed that Part IX-A of the Constitution of India deals with Municipalities.

The Court further observed that Article 243(Q) of the Constitution deals with the constitution of municipalities. Article 243(R) provides for composition of municipalities.

The Court noted that as per the said provision, all seats in municipalities shall be filled by persons chosen by direct election from the territorial constituencies in the municipal area and for which municipal area shall be divided into territorial constituencies to be known as wards.

The Court further noted, “Thus from the aforesaid provisions of the Constitution, it is quite clear that municipality must consist of elected persons. This process is democratic as the seats are to be filled up by persons chosen by direct election from the territorial constituencies in the municipal area. This democratic process is the life line of the country, which cannot be throttled.”

“Any delay in election or deferring the same on frivolous grounds amounts to destroying democracy. The State by no stretch of imagination can delay this democratic process, especially when the State Election Commission has already recommended for holding such election. It is the constitutional mandate to hold such election and no one can defy the same even by indirect means,” the Court added.

The Court while placing reliance on the judgement in the case of Suresh Mahajan Vs. State of M.P. reported in (2022) 12 SCC 770 clarified that it is the sacred 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.

The Court held that the Government cannot sit over the recommendation of the State Election Commission and throttle the voice of the people.

The Court asserted that in fact, the process of election should have started much before the term of sitting members came to an end.

Thus, the Court directed that immediately on receipt of the recommendation of the State Election Commission, the State Government to issue necessary notifications for holding such elections in relation to Municipal Corporation, Municipalities and Nagar Panchayats in the State of Jharkhand within four weeks.

With regards to the reservation of OBC seats, the Court directed that the same be governed by the judgment of the Supreme Court rendered in the case of Suresh Mahajan (Supra).

The Court further directed, “So far the ad hoc system of appointment of administrator in terms of Section 16(8) of the Jharkhand Municipal Act, 2011 is concerned, the same is absolutely a temporary arrangement. This 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 constitutional bodies by an administrator defies this basic tenet of democracy.”

“The State must ensure to provide all facilities so that the democratic process of election of Municipal Corporation, Municipalities and Nagar Panchayat is not hampered or hindered by any means,” the Court added while allowing the writ petitions.

Case No.: W.P.(C) No. 1923 of 2023

Case Title: Rina Kumari vs The State of Jharkhand and Ors

LL Citation: 2024 LiveLaw (Jha) 8

Appearance:

For the Petitioner(s) : Mr. Binod Singh, Advocate (WPC No. 2290/2023) Mr. Kaushik Sarkhel, Advocate (WPC No. 1923 of 2023).

For the State : M/s Shahabuddin, SC-VII. Mr. Gaurav Raj, AC to AAG

For Election Commission: Mr. Sumeet Gadodia, Advocate.

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