DB directs state to complete process of Municipal elections with in 6 months

01/05/2016

JAMMU, Apr 30: In a historical judgment, Division Bench of the State High Court directed state to complete the election process of Corportaions within six months.
This signficiant direction has been passed in a petition filed by Dr. HR Sharma who is a retired Professor of University of Jammu and a social activist, praying for issuance of a writ of mandamus directing the respondents to hold the elections of various Municipal Committees, Municipal Councils and Municipal Corporations as per the mandate of the Jammu and Kashmir Municipal Act, 2000, as elections were due in the year 2010 itself.
According to the petitioner, the elections to the State Municipal Committees, Municipal Councils and Municipal Corporation in the State of Jammu and Kashmir were held after 26 years in the year 2005 and the term of office of the elected representatives being five years as per Section 13 of the Act, in the year 2010 itself that period was over and thereafter no steps have been taken to conduct the elections as per the J&K Municipal Act 2000. According to the petitioner, Section 14 of the Jammu and Kashmir Municipal Act 2000 envisages the term of office of the elected members as five years from the date of first meeting of the Municipality and due to non-holding of the elections various grants sanctioned under 13th Finance Commission for welfare of the residents of the State could not be disbursed and utilized and even under 14th Finance Commission grants have been earmarked for creation of various kinds of infrastructure in different Municipal Areas/ Urban Local Bodies and the same are unable to be taken forward. It is the contention of the petitioner that the members elected in the year 2005 are over-staying and misusing their office and even after formation of the Government in 2015, no steps were taken for holding the elections inspite of the statutory provisions namely Section 14(2) stating that the elections shall be conducted on expiry of the term of office of the previously elected members within six months.
Division Bench of State High Court Comprising Chief Justice N Paul Vasanthakumar and Justice Dhiraj Singh Thakur observed that petition was taken on file on 28.04.2015 and on 05.05.2015 notice was ordered to the respondents and Mr. S.S.Nanda, learned Senior AAG accepted the notice and four weeks' time was sought for filing response. On 09.06.2015, the learned Senior Additional Advocate General was directed to get instructions from the Government regarding the schedule of elections to be conducted under the J&K Municipal Act, 2000 for the elected bodies, the term of which was over in the year 2010. Again time was sought by the learned Sr.AAG on 01.07.2015, 29.07.2015 and 24.08.2015. A status report was filed stating that after receiving the directions from the Government, the preparation of the Electoral rolls in respect of the Municipal Councils/Municipal Committees in the State as envisaged under Rule 12 of the J&K Municipal (Election) Rules, 2003, the summary revision of Municipal Electoral Rolls for Municipal Councils/Committees was ordered on 26.02.2016 listing the schedule and Similarly the summary revision of Municipal Electoral Rolls for Municipal Corporations on 01.01.2016 was also fixed.
Division Bench further observed that It is also mentioned in the status report that as per Section 10-A of the Act, the Chief Electoral Officer was appointed as competent authority for notifying the wards to be reserved for Women/Schedule Castes/Schedule Tribes in the Municipal Corporations of the State and for that purpose a notice has been issued on 26.02.2016 calling for objections. In accordance with Section 11-A of the Act, the Chief Electoral Officer has been appointed as competent authority to notify the wards for Women/Schedule Castes/Schedule Tribes in the Municipal Councils and Municipal Committees of the State and a notice has been issued calling for objections on 26.02.2016. It is also stated that the process to conduct municipal elections is underway and will be notified as soon as Electoral Rolls in respect of Municipal Committees/Councils/Corporations is completed. From the schedule extract above, the last date for final publication of Electoral Rolls for Municipal Councils/Committees was fixed as 28.03.2016 and for Municipal Corporations the publication of final Electoral Rolls was fixed as 31.03.2016 and When the matter was listed on 05.04.2016, the learned counsel appeared for the Chief Electoral Officer and prayed for time to get instructions regarding the schedule of elections to be announced and the matter was posted for 11.04.2016. On 11.04.2016, the learned Advocate General requests for time to get instructions on this issue and the time was granted up to 21.04.2016. Thereafter the matter was listed today. Today also there is no positive response from the Chief Electoral Officer or from respondents. The Advocate General submitted that an outer limit be fixed.
Division Bench further observed that thus it is evidence that the Act mandates holding of elections to Municipal Committees/Councils/Corporations and all local bodies within six months before the expiry of office of previously elected members/Board and the said period having been over. The respondents are not expected to disobey the statutory requirement. The contention that due to non-availability of elected members/Board, the funds allocated for various purposes to local bodies under 13th Finance Commission could not be utilized and even the funds sanctioned under 14th Finance Commission could not be utilized due to which welfare activities are stalled and duty is cast on the part of government to conduct the elections forthwith and deem it appropriate to cite judgment of the Supreme Court Kishansing Tomar v. Municipal Corpn. Ahmedabad wherein the Supreme Court while dealing with the question of revision of electoral rolls by the State Election Commission, noticed that the Election Commission shall complete the elelction before the expiration of the duration of five years' period as stipulated in clause (9) of Article 243-U of the Constitution and not yield to situation that may be created by vested interests to postpone elections beyond the stipulated time. The State Election Commission shall take steps to prepare the electoral rolls by following due process of law, but that too should be done in a timely manner and in no circumstances, shall the elections be delayed so as to cause gross violation of the mandatory provisions contained in Article 243-U of the Constitution.
Division Bench is of the view that respondents shall finalize the schedule of dates to conduct the elections to the Urban Local Bodies within a period of three months and complete the elections process for all the Urban Local Bodies within a period of three months therefrom. As the date has to be fixed by the respondents taking note of various factors, we are leaving same to the Chief Electoral Officer who in consultation with the appropriate authority shall take immediate steps to announce the schedule. JNF

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