SURESH MAHAJANversusSTATE OF MADHYA PRADESH AND ANR.

                         [2022] 3 S.C.R. 813                             813


                       SURESH MAHAJAN                                    A
                                  v.
           STATE OF MADHYA PRADESH AND ANR.
                (Writ Petition (Civil) No. 278 of 2022)
                            MAY 10, 2022                                 B
        [A. M. KHANWILKAR, ABHAY S. OKA AND
                 C. T. RAVIKUMAR, JJ]
      Election Laws:
       Madhya Pradesh Municipal Act, 1956 – s. 10(1) – Madhya            C
Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 – ss.
12, 23 and 30 – Madhya Pradesh Municipalities Act, 1961 – s. 29
–Issue pertaining to non-conduct of elections in respect of large
number of local bodies – State not able to complete the triple test
formalities hence, reservation for OBC category could not be             D
provisioned by State Election Commission – Also, the State
conducting activities of delimitation or formation of wards, thus,
elections could not be held – Held: Conduct of elections to install
the newly elected body in the concerned local self-government
cannot brook delay, owing to the Constitutional mandate in Art.
243-E and 243-U including the provisions in the concerned State          E
Legislation – Delay may be permitted only when the dissolution of
a local body is necessitated before the expiry of the term of that
local body – Thus, all concerned are obliged to ensure that newly
elected body is installed in every local body before the expiry of the
5 years term of the outgoing elected body and in case of appointment     F
of an Administrator by the State, regime cannot continue beyond 6
months – This Constitutional mandate is inviolable – Amendment in
the concerned enactments authorizing the State Government to
determine the number and extent of wards to be constituted in the
local bodies, and delimitation or formation of wards cannot be a
tangible ground to not notify election programme within the time         G
frame specified – Delimitation is a continuous exercise and it ought
to commence well in advance – Completion of delimitation exercise
or triple test formality can wait, if not completed before the expiry
of five years term of the outgoing elected body – Therefore, State
Election Commission is directed to proceed to issue election             H
                                 813
814            SUPREME COURT REPORTS                        [2022] 3 S.C.R.


A     programme without any further delay as and when the elections
      becomes due and without waiting for compliance of triple test –
      Until triple test formality is completed, no reservation for other
      backward classes can be provisioned – If the triple test formality is
      not completed before the issue of election programme, the Seats,
      except reserved for the SCs and STs, be notified as for the General
B
      category – As and when the delimitation exercise or the triple test
      formality is completed, elections conducted thereafter may have to
      abide by such dispensation.

            Vikas Kishanrao Gawali v. State of Maharashtra (2021)
C           6 SCC 73; Kishansing Tomar v. Municipal Corporation
            of the City of Ahmedabad & Ors. (2006) 8 SCC 352 :
            [2006] 7 Suppl. SCR 454; K. Krishna Murthy (Dr.) &
            Ors. v. Union of India & Anr. (2010) 7 SCC 202 : [2010]
            6 SCR 972 – referred to.

D                            Case Law Reference

      (2021) 6 SCC 73                 referred to           Para 5

      [2006] 7 Suppl. SCR 454         referred to           Para 6
E     [2010] 6 SCR 972                referred to           Para 25

            CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
      278 of 2022.

            Under Artilce 32 of The Constitution of India
F
            Gautam Awasthi, Ayush Choudhary, Devanshu Yadav, Sameer
      Pandey, Varun Thakur, Brajesh Pandey, Anilender K. Pandey, Advs. for
      the Petitioner.

G           Tushar Mehta, SG, K. M. Nataraj, ASG, Saurabh Mishra, D. S.
      Parmar, Bharat Singh, AAGs, P. S. Patwalia, Sr. Adv., Harmeet Singh
      Ruprah, Manish Yadav, Ms. Indira Bhakar, Mrinal Gopal Elker, Sharath
      Nambiara, Vinayak Sharma, Siddharth Seth, Kartik Seth, M/s Chambers
      of Kartik Seth, Nikhil Jain, Advs. for the Respondents.

H
    SURESH MAHAJAN v. STATE OF MADHYA PRADESH AND                                 815
                         ANR.

         The Judgment of the Court was delivered by                               A
         A. M. KHANWILKAR, J.
       1. This writ petition assails the validity of Section 10(1) of the
Madhya Pradesh Municipal Act, 1956, Sections 12, 23 and 30 of the
Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993
and Section 29 of the Madhya Pradesh Municipalities Act, 1961 as being            B
arbitrary and usurping the powers and independence of the State Election
Commission.
       2. By stated amendments, the State Government has been
authorized to issue notification from time to time determining the number
and extent of wards to be constituted in the concerned local bodies.              C
More or less, similar situation obtains in the dispensation provided for in
the State of Maharashtra, after the amendment of relevant enactments
as noted in our order dated 04.05.2022 passed in SLP(C) No. 19756 of
2021 and connected cases.
       3. The grounds urged in the present writ petition are similar to the       D
issues raised and involved in the aforementioned matters pertaining to
State of Maharashtra. This Court vide order dated 04.05.2022 has already
noted that deeper examination of the questions raised by the parties will
be necessary; and, therefore, the matters have been ordered to be posted
for further hearing. It is appropriate that even this matter is heard along       E
with the said group of cases. We order accordingly.
       4. Reverting to the issue of non-conduct of elections in respect of
large number of local bodies in the State of Madhya Pradesh, even that
is no different. As a matter of fact, the number in this State is quite
staggering. The chart handed over to the Court by the learned counsel             F
for the Madhya Pradesh State Election Commission, indicates that there
are about 321 urban local bodies, where elections have not been held
from 2019-2020. Further, the local bodies at the grassroot level (rural
local bodies) where elections have not been held in the same manner are
around 23,073, as of now.
                                                                                  G
       5. The elections have not been held assumedly for the same reason
as in the case of State of Maharashtra, namely, the State has still not
been able to complete the triple test formalities as predicated in the decision
of this Court in Vikas Kishanrao Gawali Vs. State of Maharashtra1.
1
    (2021) 6 SCC 73                                                               H
816              SUPREME COURT REPORTS                         [2022] 3 S.C.R.


A     As a result of which, reservation for Other Backward Classes (OBC)
      category cannot be provisioned by the State Election Commission. This
      has happened despite the peremptory directions given by this Court vide
      successive orders, including dated 03.03.2022. This Court had made it
      amply clear that conduct of elections to install the newly elected body
      in the concerned local self-government cannot brook delay, owing to the
B
      Constitutional mandate exposited in Article 243-E and 243-U including
      the provisions in the concerned State Legislation in that regard.
             6. A somewhat hiatus situation occurs and is permitted only when
      the dissolution of a local body is necessitated before the expiry of the
      term of that local body. Else, the term of the local self-government has
C     been specified as 5 (five) years from its first meeting, “and no longer”,
      in Article 243-E as well as in Article 243-U. This has been restated by
      the Constitution Bench of this Court in Kishansing Tomar Vs. Municipal
      Corporation of the City of Ahmedabad & Ors.2.
            7. Thus, all concerned are obliged to ensure that the newly elected
D     body is installed in every local body before the expiry of 5 (five) years
      term of the outgoing elected body. Even in case of dissolution before the
      expiry of five years period, where an Administrator is required to be
      appointed by the State, that regime cannot be continued beyond 6 (six)
      months by virtue of relevant provisions in the respective State
E     Legislation(s).
             8. This constitutional mandate is inviolable. Neither the State
      Election Commission nor the State Government or 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
F     contrary.
            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 break down of rule of law and more so,
G     palpable infraction of the constitutional mandate qua the existence and
      functioning of such local self- government, which cannot be
      countenanced.


      2
       (2006) 8 SCC 352
H     (paras 12 to 14 and 22 to 28, in particular)
 SURESH MAHAJAN v. STATE OF MADHYA PRADESH AND                                 817
           ANR. [A. M. KHANWILKAR, J.]

      10. The fact that the State legislature has effected amendments          A
in the concerned enactment(s) authorizing the State Government to
determine the number and extent of wards to be constituted in the local
bodies within the State also cannot be a tangible or legitimate ground to
not notify the election programme within the time-frame specified by the
Constitution and the law made by the Legislature in that regard.
                                                                               B
       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)
                                                                               C
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 concerned authority - it ought to be commenced well-in-advance to
ensure that the elections of the concerned local body 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             D
(thereby upholding the tenet of 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 concerned local bodies.
       12. Therefore, we direct the State Election Commission by way           E
of interim order, to issue election programme without any further delay
on the basis of the wards as per the delimitation done in the concerned
local bodies when the elections had become due consequent to expiry of
5 (five) years term of the outgoing elected body or before coming into
force of the impugned Amendment Act(s) whichever is later. On that
                                                                               F
notional basis, the State Election Commission ought to proceed without
any exception in respect of concerned local bodies where elections are
due or likely to be due in the near future without waiting even for the
compliance of triple test by the State Government for providing reservation
to Other Backward Classes. We have no manner of doubt that only
such direction would meet the ends of justice and larger public interests      G
consistent with the constitutional mandate that the local self-government
must be governed by the duly elected representatives uninterrupted
except in case of its dissolution before expiry of the term on permissible
grounds.
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818             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A            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
B
      for the General Category.
             14. It was urged that population of OBC in some of the local
      bodies is more than 50% and for that reason, percentage indicated in the
      report submitted by the Commission is a conservative approach and needs
      to be taken forward. That cannot be the basis to disregard the
C
      constitutional mandate and need to observe triple test procedure indicated
      by this Court. The political parties who claim to be the protagonist of
      participation of OBC in the governance of local bodies, are free to
      nominate candidates belonging to OBC category in the concerned
      constituencies and even against all the General seats available after
D     reserving for Schedule Castes and Schedule Tribes. We do not wish to
      dilate any further on the plea under consideration.
             15. We once again reiterate that the process of delimitation work
      and/or triple test compliance is a continuous, complex, time consuming
      and more so without any timeline (directly linked to the expiry of the
E     term of the outgoing elected body). Whereas, the conduct of elections
      for installing newly elected body to take over the reins from the outgoing
      elected representative whose term had expired, is explicitly provided
      for by the Constitution and the relevant enactments. Therefore, the former
      need not detain the issue of election programme by the State Election
      Commission, in respect of local bodies as and when it becomes due
F     much less overdue, including where the same is likely to become due in
      the near future.
             16. Be it noted that as and when the delimitation exercise or triple
      test formality, as the case may be, is completed, the elections conducted
      thereafter may have to abide by such dispensation.
G
              17. If the grounds pressed into service by the State authorities
      were to be accepted, it would be infeasible for any Election Commission
      - be it Madhya Pradesh State Election Commission - to notify the election
      programme well-in-time and to ensure that newly elected body is installed
      before the expiry of 5 (five) years tenure of the outgoing elected body.
H
 SURESH MAHAJAN v. STATE OF MADHYA PRADESH AND                                  819
           ANR. [A. M. KHANWILKAR, J.]

That would defeat the constitutional mandate and go against the tenet of        A
local self- government by democratically elected representatives,
uninterrupted.
        18. To put it differently, completion of delimitation exercise or be
it triple test formality, as the case may be, can wait if not completed well
before the expiry of five years term of the outgoing elected body, including    B
giving enough time to the Election Commission to complete the election
process within such time. Thus, the declaration of election programme
cannot be delayed by the Election Commission on that account. For, it
would inevitably result in creating hiatus situation upon expiry of 5 (five)
years term of outgoing elected body. Such an eventuality needs to be
eschewed by all the duty holders. A priori, it is not only a constitutional     C
obligation of the State Election Commission but also of the State
Government including of the constitutional Courts.
        19. In view of the above, we have no hesitation in directing the
Madhya Pradesh State Election Commission to proceed on notional basis
and issue election programme in respect of concerned local body by              D
reckoning the delimitation/formation of wards thereof as on the date
when the election of the concerned local body had “in fact” become due
or before coming into force of the (impugned) Amendment Act, which is
under-challenge before this Court in the present proceedings, whichever
is later.                                                                       E
      20. The State election Commission must do so not later than two
weeks from today. The State Government shall extend adequate logistical
support to the State Election Commission for accomplishing the task in
terms of this order.
        21. During the course of the argument, our attention was drawn          F
to the First Report dated 05.05.2022 prepared by the Backward Classes
Commission constituted by the State Government, as the first step
towards the triple test obligation as per the decision of this Court.
However, we do not intend to examine the said report or comment upon
it in the present proceedings.                                                  G
        22. Suffice it to note that mere preparation of the First Report by
the stated Commission cannot be regarded as complete compliance of
triple test requirement. In one sense, it is an inchoate situation and only a
step towards final declaration by the State Government to provide specified
just percentage of reservation for OBC category local body wise.
                                                                                H
820             SUPREME COURT REPORTS                               [2022] 3 S.C.R.


A           23. Mr. Tushar Mehta, learned Solicitor General was at pains to
      impress upon us that the First Report having been prepared by the
      Backward Classes Commission appointed by the State dated 05.05.2022,
      the State Government would now move into action and undertake the
      remaining steps to notify the seats to be reserved for Other Backward
      Classes in the concerned local bodies. Prima facie, going by the spirit of
B
      the judgment of this Court in Vikas Kishanrao Gawali (supra), even
      that exercise needs to be undertaken by the especially appointed
      Commission (dedicated) for that purpose. The report as presented to us
      has not engaged itself in that exercise which it ought to have done local
      body wise. Hence, this report in the present form will be of no avail.
C           24. In other words, the exercise of collation of empirical data and
      after analysis thereof, the Commission is expected to make
      recommendation regarding the number of seats to be reserved for Other
      Backward Classes “local body wise”. Apparently, that exercise has not
      been undertaken by the Commission. The State Government can act
D     upon only thereafter and as per the recommendations of the Commission
      - which is an independent body created to ensure that there is no over-
      breadth of such reservation in the “concerned local body”.
            25. Be it noted by all concerned that the nature and purpose of
      reservation in the context of local self-government is markedly different
E     from that for higher education and public employment, as expounded
      by the Constitution Bench3 of this Court.
             26. As aforesaid, the State Election Commission need not wait
      any further, but shall notify the election programme without any further
      delay in respect of local self-government whose election(s) had become
F     due; and in the present case, as aforesaid, overdue in respect of 23,263
      local bodies across the State of Madhya Pradesh, as of now.
            27. Acceding to the argument set forth on behalf of the State of
      Madhya Pradesh would be over-looking and in fact a case of violation of
      the successive directions given by this Court to the State Election
G     Commission to speed up the election process in respect of local bodies
      where elections are due/overdue and to proceed without providing
      reservation for Other Backward Classes (but limited to the constitutional
      reservation for Scheduled Castes and Scheduled Tribes) until the
      3
        K. Krishna Murthy (Dr.) & Ors. vs. Union of India & Anr., (2010) 7 SCC 202 [para
H     82(i)]
 SURESH MAHAJAN v. STATE OF MADHYA PRADESH AND                                  821
           ANR. [A. M. KHANWILKAR, J.]

completion of triple test formality by the State “in all respects”. As and      A
when, the formalities of triple test are completed, that can be reckoned
for future elections to be held thereafter. However, elections which are
already due need not and cannot be delayed on that count in view of the
constitutional mandate.
       28. We were also informed by the learned counsel appearing for           B
the Madhya Pradesh State Election Commission during the course of
arguments that some writ petitions are pending before the High Court in
which interim orders have been passed and that may come in the way of
the State Election Commission to notify the election programme. In that
regard, we make it clear and also direct that the State Election Commission
must abide by the directions and observations in this order uninfluenced        C
by any order of the High Court or the Civil Court on the subject of elections
of the concerned local self-government, as the case may be. If any
order passed or to be passed hereafter by the High Court or the Civil
Court in the State of Madhya Pradesh, is in conflict with the directions
given by this Court, the same shall be deemed to have been superseded           D
in terms of this order and not to be acted upon without the prior permission
of this Court.
      29. As requested by Mr. Tushar Mehta, learned Solicitor General,
we place on record that all steps taken by the State Election Commission
and we may add even the State Government, on the basis of the directions        E
given in terms of this order will be subject to the outcome of these
proceedings.
       30. We once again make it clear that if delimitation is not done
by the State Government in terms of Amendment Act(s) of 2022 or the
triple test requirement is completed “in all respects” for providing            F
reservation to OBC category, the State Election Commission shall give
effect to this order also in respect of upcoming elections of local bodies
which would/had become due by efflux of time.
       31. We also make it clear that this order and directions given are
not limited to the Madhya Pradesh State Election Commission/State of            G
Madhya Pradesh; and Maharashtra State Election Commission/State of
Maharashtra in terms of a similar order passed on 04.05.2022, but to all
the States/Union Territories and the respective Election Commission to
abide by the same without fail to uphold the constitutional mandate.

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822              SUPREME COURT REPORTS                      [2022] 3 S.C.R.


A           32. List this matter on 12.07.2022, to be heard along with SLP(C)
      No. 19756 of 2021.
           33. The Madhya Pradesh State Election Commission to file
      compliance report in due course.
             34. In case of any difficulty, liberty is granted to the Madhya
B     Pradesh State Election Commission to apply before the returnable date
      so as to ensure that the election programme in respect of concerned
      local body is taken forward without any interruption.

      Nidhi Jain                                               Directions issued.
C     (Assisted by : Shashwat Jain, LCRA)




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