SHAKUNTALA GURUNG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) What would be the consequence of a failure to place an Ordinance before the Legislative Assembly in terms of Art. 213(2)(a) of the Constitution of India (for short, the "Constitution"), once the Legislative Assembly reassembles is the short question that falls for determination herein.

(2.) The petitioner said to be a public spirited citizen and a Voter of 10/Arithang-II Municipal Ward and Acting Vice President of the Sikkim Democratic Front (Cheli Morcha) has filed the instant writ petition alleging that the State-respondent No.1 has acted contrary to the provisions of Art. 213 of the Constitution while amending the Sikkim Municipalities Act, 2007 by way of the Sikkim Municipalities (Amendment) Act, 2021 (for short the "Amendment Act of 2021"). Consequently the By-Election to the 10/Arithang-II Municipal Ward cannot be held under the provisions of the said Amendment Act of 2021. It was further urged that Elections to the 19 (nineteen) Wards of the Gangtok Municipal Corporation (for short, the "GMC") held in March, 2021, is illegal and unconstitutional in view of the Amendment Act of 2021 not adhering to the provisions of Art. 213 of the Constitution.

(3.) The crux of the case as can be culled out from the averments of the petitioner is that on 30/11/2020, the Governor of Sikkim promulgated the Sikkim Municipalities (Amendment) Ordinance, 2020 (Ordinance No.04 of 2020) (for short, the "Ordinance"), vide notification No.04/LD/20 issued by the State-respondent No.5 (Law and Parliamentary Affairs Department) of the same date, duly published in the Sikkim Government Gazette, wherein amendments to Sec. 8 and 13 of the Sikkim Municipalities Act, 2007 (for short, the "Act of 2007") were inserted. By the said amendments, under clause (a) of sec. 8 of the Act of 2007, the word "nineteen" was substituted for the word "seventeen, " while in sec. 13 of the Act, in the existing Table, against Municipal Corporation, under the column "Maximum Number" for the figure "17," the figure "19" was substituted. That, pursuant thereto, the Public Notice No.352/UDD/2020, dtd. 30/11/2020, was issued by the State-respondent No.3 (Urban Development Department), informing that the State Government intended to insert the said amendments. That, the Fourth Session of the Tenth Assembly of the Sikkim Legislative Assembly was held on 11/1/2021 but the Ordinance dtd. 30/11/2020 allegedly was not laid before the Sikkim Legislative Assembly despite being bound by constitutional provisions and thereby ceased to operate from 22/2/2021 on or before which date it ought to have been placed before the Sikkim Legislative Assembly in view of clause (2)(a) of Art. 213 of the Constitution. Despite this circumstance the State-respondent No.2 (State Election Commission) prepared Electoral Rolls for 19 (nineteen) Wards of the GMC wherein election were called vide notification No.19/Home/2021 dtd. 25/2/2021, elections held on 31/3/2021 as per notification No.7/SEC/2021 dtd. 1/3/2021 and results declared on 3/4/2021. That, reservation of seats were notified on 25/2/2021 in the various local governing bodies. In the Fourth Session (Part II) of the Tenth Assembly of the Sikkim Legislative Assembly, held on 26/3/2021, the Sikkim Municipalities (Amendment) Bill 2021 (Bill No.07 of 2021) was introduced and duly considered and passed. The assent of the Governor was obtained on 30/3/2021 and the Bill converted to the Sikkim Municipalities (Amendment) Act, 2021 providing for a "repeal and saving" clause thereby illegally clothing the Legislative Assembly with powers to override Clause (2)(a) of Art. 213 of the Constitution. That, the said amendments are thus null and void.