P N BAROT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . This petition under Art. 226 of the Constitution of India is filed by a duly elected Corporator of the Ahmedabad Municipal Corporation, who was also Ex-Mayor of the Corporation to challenge the constitutional validity of Gujarat Local Authorities (Temporary Postponement of Elections and Extension of Term) Act, 1993 (hereinafter referred to as "the Postponement of Election Act"), in so far as it seeks to postpone the General Elections of Councillors of the Corporations in four major metropolis, viz., Ahmedabad, Baroda, Surat and Rajkot. Though in the main petition, a prayer for issuance of writ was made to declare the entire Postponement of Elections Act, 1993 as ultra vires the Constitution of India and for quashing and setting aside the said enactment, it must be stated that at the hearing of this petition, challenge was confined to Sec. 3(a) of the said Act. It must also be stated that though no specific relief was prayed for holding election of the Councillors of the said Corporations, as a relief consequential to the main relief, in the course of submission, it was also prayed that directions must be issued to the respondents and more particularly to the Commissioners of respective Corporations being respondents Nos. 2 to 5 to hold elections of the Councillors at the earliest.

(2.) . In order to appreciate the challenge to the constitutionality of the Postponement of Elections Act, 1993, it will be necessary to refer chronologically to the facts and circumstances, which have given rise to the enactment of the Postponement of Elections Act and consequently to the present petition. The relevant Facts are as under : (I) Four Municipal Corporations, viz., Ahmedabad Municipal Corporation, Surat Municipal Corporation, Baroda Municipal Corporation and Rajkot Municipal Corporation were reconstituted after General Elections of the Councillors in the month of February, 1987 under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the 'Principal Act'). Under Sec. 6(1) of the Principal Act, terms of office of the elected Councillors would expire at the end of the fifth year if not extended for a further period upto one year by the State of Gujarat. It is an admitted fact that terms of the Councillors of reconstituted Corporations were to expire between 6th and 1 2/02/1992. as the period of five years from the date of the first meeting of the Councillors would expire between those dates. The terms of the Councillors were not extended by the State Government under Sec. 6(1) for the further period of one year. Under Sec. 7(A) of the Principal Act, on expiry of the terms of the Councillors, the State of Gujarat had power to appoint Administrators to take over charge of the Corporations. Since the State Government had admittedly not taken any action for extending the term of the aforesaid Corporations and since it was apprehended that the Administrators might be appointed under Sec. 7(A) of the Principal Act, a group of petitions being Special Civil Applications No. 583 to 588 of 1992 came to be filed in this Court inter alia challenging the constitutionality of Sec. 7(A) of the Principal Act and also for a writ of mandamus against the concerned authorities, calling upon them to initiate process of election for reconstituting the aforesaid four Corporations and to extend the terms of the Councillors in the meantime. (II) Such group of petitions came to be decided by the Division Bench of this Court comprising of S. B. Majmudar, Acting Chief Justice and N. J. Pandya, J. on 20/02/1992. The said decision of the Division Bench in the case of Abdulgani Abdulbhai Kureshi v. State of Gujarat, reported in 1992(1) GLR 503, the Division Bench directed the State of Gujarat to proceed to hold General Board Elections in all the four Corporations forthwith on the basis of 1981 Census figures. The State of Gujarat was also directed to issue necessary Notifications under Sec. 5(2) and (3) of the Principal Act in the light of the Census figures. The State Government was also directed to complete the aforesaid exercise on or before 31/03/1992 and thereafter it was directed to issue suitable directions to the Commissioners of the four Corporations to take steps to prepare electoral rolls for all the Corporations and thereafter to commence the process of election so as to complete the same latest before the end of December, 1992. The Division Bench also directed that in the meantime the outgoing Councillors will act as full-fledged Councillors discharging all their legitimate functions and the Division Bench also restrained the State Government from resorting to exercise of power under Sec. 7(A) of the Principal Act and from appointing Administrators to the said Corporations. (Ill) Being aggrieved by the aforesaid judgment and order of the Division Bench in the group of petitions, the State Government has filed Special Leave Petition (Civil) No. 12062 of 1992 with 11750, 12375 and 77 and 12460 of 1992, seeking special leave to appeal against the judgment and order of the Division Bench of the Gujarat High Court. The State Government has also filed an application for ex parte stay and Special Leave Petitions as well as applications for interim relief were placed for admissional hearing on 30/11/1992 before the Division Bench of the Supreme Court, comprising of Hon'ble Mr. Justice M. N. Venkatachaliah (as His Lordship then was) and Hon'ble Mr. Justice A. S. Anand. The Supreme Court passed following order : "Issue Notice on the SLPs returnable on 29/01/1993. Stay Application is dismissed " (IV) It must be stated that the State of Gujarat partially complied with the directions issued by the Division Bench of this Court in the case of A. A. Kureshi, (supra) so as to issue necessary notifications under Sec. 5(2) and (3) of the Principal Act. The said exercise was completed on or before 31/03/1992 arid necessary instructions were issued to all the Commissioners to prepare electoral rolls of all the Corporations and to proceed to hold fresh election of the Councillors. In view of the fact that Supreme Court of India refused to grant stay and dismissed the applications for stay on 30/11/1992, the final step in the process of election, viz., fixing the date of polling was also notified and polling was scheduled to take place on 2 7/12/1992. It is not disputed before us that all necessary steps for holding of General Elections of the Councillors of the aforesaid four Municipal Corporations were duly taken. (V) On 6th of December, 1992, the unfortunate incident of demolition of Babri Masjid at Ayodhya took place, giving rise to large scale violence in various parts of the country including the State of Gujarat. It is the case of the respondents that incidents of riots, arson and looting on a large scale took place in various parts of the State and more particularly in the city of Ahmedabad, Baroda, Surat, Bharuch, Palanpur and at Mahudha town in Kheda District. It is further case of the State that the law and order situation deteriorated and was beyond control in some of the towns including Surat and Bharuch for quite long time thereafter. In such an atmosphere surcharged with communal frenzy and hatred, a total atmosphere of revenge and panic prevailed and the atmosphere in the entire State including the four metropolis was not congenial to hold free and fair elections of Municipal Councillors. (VI) On 10th of December, 1992, the Municipal Commissioners of the aforesaid four Corporations issued public notices informing the inhabitants of the respective city that looking to the deteriorating situation of law and order in the city, it was not possible to hold or to get hold the General Elections of the Municipal Corporations on 27/12/1992 and, therefore, the General Elections to be held on 27/12/1992 were postponed approximately for a period of two months. Such notice also stipulated that postponed date of election will be notified at appropriate time. Identical notices were issued by all the four Commissioners of respective Corporations. (VII)On 12th of December, 1992, the Advocate of the present petitioner addressed communication to the Municipal Commissioner of Ahmedabad intimating him that postponement of election scheduled to take place on 27/12/1992 will amount to contempt of the Supreme Court of India inasmuch as the Supreme Court of India and the High Court of Gujarat have directed to hold election before specified time and it was not permissible to postpone election indefinitely beyond specified date and he also called upon the Municipal Commissioner to withdraw such notice. (VIII) Immediately thereafter the Municipal Commissioners of the aforesaid four cities, viz., respondents No. 2 to 5 herein moved interlocutory applications for stay in the Supreme Court for extending the outer date for conducting the elections. Such applications were permitted to be circulated on 17/12/1992 and after hearing the learned Counsels for all the parties, the Hon'ble Supreme Court of India passed order the relevant portion of which is as under :

(3.) . In response to the rule nisi issued by this Court, respondents have appeared and one Mr. R. H Gori, Secretary, Parliamentary Affairs in Legal Department of the State of Gujarat has filed the affidavit-in-reply setting out facts and circumstances necessitating introduction of the Bill and enacting of the legislative enactment by State Legislative Assembly and also defending the impugned Act as a permissible and constitutional piece of legislation. The affidavit-in-reply makes a detailed reference to the position of law and order situation in various towns and cities of the State of Gujarat immediately after 6th of December, .992 as a result of the incident of demolition of Babri Masjid at Ayodhya. It has made a detailed reference to widespread violence and eruption of communal frenzy leading to large number of deaths of innocent citizens and causing of serious grievous injuries to large number of citizens. The affidavit also sets out in detail the law and order situation in various towns, cities and villages of the State, which deteriorated calling for deployment of large Police Force, Home Guards and other Para Military Forces. The entire Police Force, Home Guards, Military and Para Military Forces, according to the deponent of the affidavit, were called for aid of civil authorities for maintenance of public order in order to meet the situation. The entire State machinery of Revenue Department, Industries Department and other departments were engaged in huge task of rehabilitation work and it is the case of the State that all the available resources of the Stale were mobilized for this task. It is in such Circumstances that the Bill was drafted and introduced in the Legislative Assembly of She State and, therefore, the impugned Act was not unconstitutional. It is further stated in the affidavit-in-reply that all preparations for holding election as per Order of the Hon'ble High Court were made and even Polling Date was fixed. But for the widespread communal riots in the State because of the incident of 6/12/1992, election as scheduled would have taken place. It is further case of the State that for circumstances which were created subsequent to the aforesaid incident it was not congenial and expedient for holding free and fair election of local authorities, as administrative machinery of the Stale, under the circumstances, was required to be geared up to meet with the law and order situation and for undertaking relief and rehabilitation measures. It was also felt that for holding such election, proper arrangements for sparing and deployment of the necessary staff and for taking other steps for holding free and fair elections and to ensure that no inconvenience is caused to the candidates as well as the voters in genera], large scale arrangements were required to be made calling for deployment of huge staff, Police Force, and the same was not then possible as the Commissioner of respective Corporations, Collector of the Districts, Election Authorities and other Government and local officials were extremely busy with meeting the situation that has arisen after 6th of December, 1992..It is further case of the State that consistent with the constitutional objective of secularism, it was necessary to see that complete religious neutrality is achieved and communalism and orthodoxy of certain power factions in the country is eschewed. With a view to seeing that the voters exercise their franchise freely and fairly without being suppressed or influenced by the communal frenzy which was let loose by certain fundamentalist forces, it was necessary to postpone the election to a future date. The affidavit further recites that with that end in view the impugned legislation was passed which the State Legislature was competent to enact and which seeks to provide only postponement of election beyond the term of six years (extended term) thereby extending the terms of the Councillors for a period upto 31/10/1993 or any date prior thereto when the State decides to hold election. The impugned Act, therefore, is in substance a Validating Act and is a remedial measure enacted with a view to deal with an impossible situation not contemplated by the Principal Act and, therefore, such a statute was neither impermissible nor unconstitutional nor was it enacted with a view to make any inroad on the exercise of judicial power.