Omprakash And Ors vs State Of Rajasthan And Ors

By way of this petition, the petitioners are seeking directions to the respondents to hold the elections of Municipal Board, Nokha and Municipal

Board, Deshnok forthwith and remove the Administrator appointed vide order dated 20.8.20 issued by the Director and Special Secretary, Department

of Local Self Government.

The term of the elected Board of Municipality, Nokha and Deshnok came to an end on 20.8.20. As per mandate of provisions of Article 243 U of

the Constitution of India, an election to constitute a municipality is required to be completed before the expiration of its duration specified i.e. 5 years

from the date appointed for its first meeting and no longer. However, no steps were taken by the State Election Commission to conduct the election of

the said municipalities before the expiry of its duration instead, Administrator was appointed vide order dated 20.8.20. Hence, this petition.

Learned counsel appearing for the petitioners contended that the action of the respondents in not conducting the elections of various municipalities

before expiry of the term specified is ex facie violative of the Constitutional mandate as also the provisions of Section 11 of Rajasthan Municipalities

Act, 2009 (for short ""the Act of 2009""). It is submitted that the process for election has not been initiated by the State Election Commission on the

pretext of COVID-19 Pandemic situation prevailing in the State whereas, recently the elections of Bihar Assembly and by-election of various

Parliamentary and Assembly Constituencies have been successfully conducted. That apart, Panchayat elections have also been conducted in the State

of Rajasthan successfully. It is contended that the action of the State Election Commission in not holding the elections of 129 municipalities is ex facie

illegal and arbitrary.

The State Election Commission in the counter affidavit filed has taken the stand that the elections of Municipal Corporations, Jaipur Heritage, Jaipur

Greater, Jodhpur North, Jodhpur South, Kota North and Kota South have been conducted on 1.11.2020 and 3.11.2020. Thereafter, the process for

election of 50 municipalities of 12 districts was initiated on 7.11.2020, which also stands completed. It is submitted that the machinery and manpower

is presently deployed in conducting the elections of Zila Parishads and Panchayat Samities in 21 districts and it was not possible to conduct the

municipal elections in the remaining municipalities simultaneously.

Mr. Vikas Balia, learned counsel appearing for the State Election Commission has placed on record communication dated 15.12.2020 sent by the

Chief Election Officer and Secretary, State Election Commission clarifying that the election process of 50 municipalities in 12 districts shall be

completed on 21.12.2020. The directions have already been issued to the District Election Officer to start preparation for conducting elections of 90

municipalities in 20 districts. As per the said communication, as far as possible, the elections of 90 municipalities shall be completed by 28.2.2021.

Learned counsel appearing for the petitioners contended that under the constitutional scheme, the elections of the municipal bodies cannot be

deferred and the elections have to be conducted prior to expiry of its duration and thus, the action of the State Election Commission in deferring the

elections of the municipalities for indefinite period on one or another pretext is absolutely unjustified. Learned counsel submitted that the appropriate

directions deserve to be issued by this Court for conducting elections of all the municipalities of the State of Rajasthan within time frame.

Mr. Vikas Balia, learned counsel appearing for the State Election Commission submitted that the State Election Commission has no intention to defy

the constitutional mandate and postpone the elections of the municipalities for indefinite period. Learned counsel submitted that on account of spread

of COVID-19 Pandemic in the State, the elections of the municipalities could not be conducted before the expiry of the term. It is submitted that now

the elections of Zila Parishad, Panchayat Samities and 50 municipalities are over and elections of the remaining municipalities are proposed to be

completed by 28.2.2021. Learned counsel submitted that the election process cannot be completed prior to 28.2.2021 inasmuch as, Electronic Voting

Machines (EVMs) have become available recently after conducting the elections of Zila Parishad, Panchayat Samities and 50 municipalities, which

cannot be put to re-use immediately.

We have considered the submissions of the learned counsel for the parties.

Indisputably, as per the mandate of Article 243U of the Constitution of India and Section 11 of the Act of 2009, the election to constitute a

municipality has to be completed before the expiry of its duration i.e. 5 years from the date appointed for its first meeting. It is pertinent to note that

the Act of 2009 does not contain any provision enabling the State Government to appoint the Administrator to manage the affairs of a municipality.

Thus, the State Election Commission was under constitutional obligation to conduct the elections of all the municipalities prior to expiry of the term

specified. But then, it is an undeniable fact that the spread of COVID-19 Pandemic has caused serious impact on the society and no institution was in

position to discharge its function with full working strength. In this view of the matter, the reason assigned by the State Election Commission that on

account of the prevailing COVID-19 situation, the elections could not be conducted as per the constitutional mandate, cannot be disbelieved. It is

noticed that the elections of various Zila Parishad and Panchayat Samities and Municipalities have been successfully conducted by the State Election

Commission in the recent past. But the fact remains that the elections of the remaining municipalities including the Municipal Board, Nokha and

Deshnok also need to be conducted with utmost expedition. A perusal of election programme issued by the State Election Commission for other

municipalities placed on record reveals that the election process of the municipalities takes about a month's time. However, as pleaded by the State

Election Commission, after the elections of the Zila Parishad, Panchayat Samities and 50 municipalities, the EVMs have become available only a few

days back, which cannot be put to re-use immediately. Thus, taking into consideration totality of facts and circumstances, we consider it appropriate to

grant two months time to the State Election Commission to conduct the elections of remaining 90 municipalities including the Municipal Board, Nokha

and Deshnok.

Accordingly, the writ petition is disposed of with the directions to the State Election Commission to conduct the elections of remaining 90

municipalities including Municipal Board, Nokha and Municipal Board, Deshnok preferably by 15.2.2021 and in any case, latest by 28.2.2021. No

order as to costs.