Decided on March 19,2013

Mahabeer Chauhan And Another Appellant


- (1.) This writ petition, which is in the nature of a Public Interest Litigation, has been filed by two people, who are Ward Members of Municipal Board, Uttarakashi. According to them, the tenure of the Municipal Board, Uttarakashi, will come to an end on 4 th May, 2013 and as yet no steps have been taken to hold election of the said Board. They purported to contend that the steps to hold the election could not be taken in view of non publication of census figures (statistics) of 2011 of District Uttarkashi. They have accordingly asked for mandamus to publish the same and to direct the respondents to take appropriate steps for completing the election on time. They have also contended that for failure on the part of the appropriate respondents to complete the election, or for delay on the part of Registrar General and Census Commissioner in publishing census figures of 2011, no Administrator be appointed in Municipal Board, Uttarkashi.
(2.) A close scrutiny of this writ petition suggests that the same has been filed in private interest of the petitioners to ensure that despite election to the said Board being not held, no Administrator is appointed in the said Board and, accordingly, the petitioners continue to remain as Ward Members. The State Government is a respondent to the writ petition. A unique stand has been taken by the State Government in its counter affidavit. It is not disputing that the term of 31 Municipalities in the State is coming to an end on 4th May, 2013 and it is also not disputing that in relation to election for those Municipalities, it has not discharged its obligations, but is purporting to contend that for failure on the part of the Registrar General and Census Commissioner to publish the data for the census 2011, it has been prevented by a necessary prevalent condition to initiate steps that are required to be taken for completion of the election. According to the State Government, no census data is available, inasmuch as, census data of 2011 has not been published and, at the same time, census data of 2001 is also not available, because the same has been weeded out. State Government is also relying upon a judgment of a learned Single Judge, rendered in Writ Petition No. 261 of 2013 (M/S) and connected writ petitions, whereby and under, the learned Judge desired that the Director of Census Operations, Uttarakhand will notify the census after completing all necessary formalities within a period of three months and thereafter, the State Government will complete their obligation in terms of Section 32 of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959 and Section 11- B of the Uttar Pradesh Municipalities Act, 1916 within a period of two months and thereafter the State Election Commission shall undertake the election process in accordance with law. It was contended on behalf of the State Government that since that order was passed on 7th March, 2013, all activities of the State Government stood frozen since then, as it is awaiting fulfillment of the desire of the Court that the Director of Census Operations, Uttarakhand will notify the census after observing all requisite formalities within a period of three months. In other words, the State Government has taken a stand that in the given facts and circumstances of the case, since no data is available, no election can be held and for that matter, if necessary, the Municipalities will not remain in suspended animation, as they will function through Administrators to be appointed under sub-section (4) of Section 10- A of the Uttar Pradesh Municipalities Act, 1916 and corresponding provisions contained in other Acts dealing with other kinds of Municipalities.
(3.) The real picture, on facts, has been disclosed by the Uttarakhand State Election Commission in its counter affidavit. From the said affidavit, it is evident that as far back as on 21st December, 2011 the Commission had brought to the notice of the State Government that election for the Municipalities are required to be completed in the month of April 2013 and, therefore, the State Government is required to discharge all its obligations in relation thereto. This letter remained unanswered. The Commission accordingly on 13th March, 2013 gave a reminder and brought to the notice of the State Government the provisions of the Constitution requiring holding of the election within five years from the date of the first meeting of the existing Municipalities. This letter, too, remained unanswered. Subsequent thereto, on 28th August, 2012, a meeting was held between the representatives of the Commission and the representatives of the State Government. In that, amongst others, it was decided that the State Government will discharge its obligations on the basis of census 2011. The delimitation will be completed by 31st October, 2012 and the State Government will discharge its obligations pertaining to reservations by 30th November, 2012. The fact remains that the data of 2011 census was not published. The State Government, accordingly, did not take any step in respect of delimitation. Consequently, it did not take any step pertaining to reservation. The Commission, on 8th November, 2012 published a notification in respect of preparation of electoral roll. It is the contention of the Commission that the electoral roll has since been prepared. On 29th November, 2012, the State Government wrote a letter to the Commission, and thereby, indicated that in respect of the election to be held in 2013, it will rely on the census data of 2001, since 2011 data has not yet been published. In view of the said letter dated 29th November, 2012, it was obligatory on the part of the State Government to take steps for delimitation on the basis of the 2001 data and also to take steps for reserving the seats. In the affidavit filed by the State Government, it has not stated anything as to what it did since 29th November, 2012 until the judgment of the learned Single Judge was rendered on 7th March, 2013. The said state of affairs clearly indicates that the State Government, by not acting in the manner it was required to act, sought to prevent the Commission to hold election in terms of the mandate of the Constitution, only for the purpose of transferring the mantel of these Municipalities to the Administrators to be chosen by the State Government. The facts disclosed above suggest reprehensible conduct on the part of the State. The one and the only conclusion would be that the State Government is deliberately sitting over the matter, so as to not permit the State Election Commission to hold the election on time. The Commission despite such action on the part of the State has prepared a draft notification for holding the election in the month of April 2013 and forwarded the same to the State on 7th March, 2013 seeking its concurrence. ;

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