Title: Rajesh Kumar Sharma and others v. State of Punjab and others
Decided on: 17th October 2023
CWP No.7548 of 2023 (O&M), CWP No.17204 of 2023 (O&M), CWP No.15263 of 2023 (O&M) & CWP No.16079 of 2023 (O&M)
Coram: HON’BLE MR. JUSTICE RAJ MOHAN SINGH & HON’BLE MR. JUSTICE HARPREET SINGH BRAR
Introduction
The Punjab & Haryana high court holds that the entire delimitation exercise in Municipal Councils of Dera Baba Nanak, Dharamkot and Municipal Corporation Phagwara, since inception is conducted on irrelevant consideration and by committing glaring breach of Rules of 1972. It was declared to be illegal and subsequent notifications issued based on such delimitation do not survive either.
Facts of the Case
Dera Baba Nanak is a Municipal Council situated in the District of Gurdaspur and holds regular elections for local bodies as per the mandate conferred on it by the 74th amendment of the Constitution of India. In the year 2020, the respondent-department had issued the draft Notification for wardbandi of the Dera Baba Nanak Municipal Council, as there was increase in population by addition of five villages. The respondent-department by notification sanctioned the wardbandi and sent the final wardbandi map and details of the reservation criteria for publication in the official Gazette. On proposal the Department of Local Bodies issued notification qua holding of municipality elections on 31.05.2021. However the elections could not be held due to addition of five adjoining villages. Petitioners came to know that respondent-department to give undue advantage to the ruling party of the State of Punjab was going to conduct wardbandi afresh, even though the last wardbandi was already done and sent for publication in the official Gazette. The respondent-department again issued a draft notification of wardbandi and issued a public notice for inviting objections in a completely illegal and arbitrary manner. Applications were filed by petitioner No.1 under the Right to Information Act, 2005 seeking information of a copy of notification through which five villages were added, starting and end point of the wards, reservation details of wards etc. Information was provided and a public notice was issued by the Executive Officer, Municipal Council, Dera Baba Nanak whereby objections were sought from the residents of the area within 7 days from the date of publication about conduct fresh wardbandi.
The petitioners, being residents of the area sought copy of proposed draft of delimitation, but it was not supplied to them rather they were told that maps of wardbandi are available with the Municipal Council, which can be looked into by them. The petitioners filed their objections on 30.12.2022 to the respondent-department pointing out the mistakes in the new draft of wardbandi as well as the fact that it was not drafted as per the provisions of law. It was also mentioned that wardbandi of the said area was already done in the year 2021 and a fresh wardbandi is proposed without proper information – a pick and choose policy has been adopted in adding and subtracting the houses in the wards as per the whims and fancies of the department. As the wardbandi was done only in the year 2021, there was neither any boundary altered nor population increased to such an extent that fresh wardbandi was required to be done within a period of one year. Despite the said fact, the respondent department published the final notification without deciding the objections raised by the petitioners and was in contravention of Rules 3 to 8 of Rules of 1972. Therefore, the petitioners have approached Court by way of writ petition.
Court Analysis and Decision
Court observed that the entire delimitation exercise in Municipal Councils of Dera Baba Nanak, Dharamkot and Municipal Corporation Phagwara is conducted on irrelevant consideration and by committing breach of Rules 3 to 8 of the Rules of 1972. The entire delimitation exercise was declared to be illegal. Once it is declared that the entire delimitation exercise from the very beginning has not been conducted validly, subsequent notifications issued based on such delimitation cannot survive. Therefore, notifications dated 27.01.2023, 18.01.2023 and 05.09.2023 were declared invalid and the delimitation process was set aside on grounds that:
(i) The constitution of the Delimitation Board was done in clear violation of Rule 3 of the Rules of 1972.
(ii) The delimitation exercise is set aside as it was done by respondent No.5 and not by the Delimitation Board under Rule 4 of the Rules of 1972.
(iii) As per Rule 6 of the Rules of 1972, determination of wards based on geographical compactness, physical features, existing boundaries of administrative units, facilities of communication and public convenience were not followed.
(iv) The population survey by visiting door to door for the purpose of reservation of wards was not done and no such order was passed by respondent No.2.
(v) As per Rule 12 (e) of the Punjab Municipal General Rules, 1979, on issue of notice 30 days time is prescribed from the date of its publication for inviting objections, whereas in the present case only 7 days time was given.
(vi) The notifications challenged were issued without de-notifying or superseding the earlier notifications, which still have the force of law and therefore, two notifications cannot be issued.
The court has allowed Writ Petitions Nos.7548, 17204 and 16079 of 2023 and directed the State Election Commission to hold election to the Municipal constituencies as it existed before the delimitation exercise and as the process of revision and finalization of the electoral roll is underway, the State Election Commission must conclude the revision/finalization of the electoral rolls and issue appropriate notification for conducting elections to local bodies by giving schedule of election, dates for filing nomination papers, scrutiny of nomination papers and voting etc.
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Written by- K R Bhuvanashri
