Non-Completion Of “Triple Test Formalities’ For Identifying OBC Reservation Seats Not A Ground To Delay Local Self-Government Elections: Jharkhand HC

The Jharkhand High Court observed that non-completion of the “triple test formalities’ for identifying seats to be reserved for OBCs is not at all a ground to defer or delay election of local self-government.

The Court was deciding a batch of writ petitions seeking directions to the State to immediately and forthwith notify election process to Local Self Government bodies in the State.

A Single Bench of Justice Ananda Sen held, “Thus the Hon'ble Supreme Court directed that the Election should be notified even if the “triple test formalities” has not yet been completed. From the aforesaid judgment, the issue has been set at rest and now as per the judgment, it is not sine qua non to conclude the “triple test formalities” before holding elections for a local body. It is thus clear that elections can be held even if “triple test formalities” is under process and/or has not yet been completed. Non-completion of the “triple test formalities’ for identifying seats to be reserved for OBCs is not at all a ground to defer or delay election of local self-government.”

Advocates Binod Singh and Kaushik Sarkhel represented the petitioners while SC-VII Shahabuddin, AC to AAG II Gaurav Raj, and Advocate Sumeet Gadodia represented the respondents.

In this case, in one writ petition, the petitioner prayed for a mandamus directing the State to immediately and forthwith notify election process for Nagar Panchayat, Jamtara, as the term of Nagar Panchayat, Jamtara was to expire on May 2023. Further prayer was made that if the elections are not notified and could not be held before the expiry of the term of the Nagar Panchyat, the seating members be allowed to function till the fresh elections are held. A prayer was also made by way of amendment to quash the order by which, after expiry of the term of Nagar Panchayat, Jamtara, Administrator was appointed.

In the other petition, prayer was made for a direction to hold election of Ranchi Municipal Corporation in view of the mandate under Article 243(U) of the Constitution and also in terms of Section 16(4) and 20 of the Jharkhand Municipal Act, 2011, since five years term of the elected body had already expired on April 27, 2023. Further prayer was made to quash the notification issued by the Municipal Commissioner whereby administrator was appointed for administering the activities of the municipality, after expiry of the term of the elected members. Thus, in both writ petitions, the petitioners prayed for a direction upon the respondents to notify the election of Municipal Corporation, Municipality, and Nagar Panchayat.

The High Court after considering the submissions made by the parties said, “Part IX-A of the Constitution of India deals with Municipalities. Article 243(Q) of the Constitution deals with the constitution of municipalities. Article 243(R) provides for composition of municipalities. As per the said provision, all seats in municipalities shall be filled by persons chosen by direct election from the territorial constituencies in the municipal area and for which municipal area shall be divided into territorial constituencies to be known as wards.”

The Court noted that the municipality must consist of elected persons and such process is democratic as the seats are to be filled up by persons chosen by direct election from the territorial constituencies in the municipal area and such democratic process is the life line of the country, which cannot be throttled.

“The State by no stretch of imagination can delay this democratic process, especially when the State Election Commission has already recommended for holding such election. It is the constitutional mandate to hold such election and no one can defy the same even by indirect means. … The ground taken by the State is not at all acceptable and cannot be sustained, as by no stretch of imagination, it can be presumed that the process can be completed soon, inasmuch as admittedly the post of Chairperson of Jharkhand State Backward Class Commission is vacant”, observed the Court.

The Court also held that the Government cannot sit over the recommendation of the State Election Commission and throttle the voice of the people. It said that the process of election should have started much before the term of sitting members came to an end and thus, immediately on receipt of the recommendation of the State Election Commission, State Government will issue necessary notifications for holding such election in relation to Municipal Corporation, Municipalities and Nagar Panchayats in the State of Jharkhand within four weeks.

“So far the ad hoc system of appointment of administrator in terms of Section 16(8) of the Jharkhand Municipal Act, 2011 is concerned, the same is absolutely a temporary arrangement. This temporary arrangement cannot be allowed to continue for long. Thus it is more important to hold election at the earliest. The basic tenet:- “Government by the people, of the people and for the people” is to be applied, reinforced and implemented in true letter and spirit. Running these constitutional bodies by an administrator defies this basic tenet of democracy”, it concluded.

Accordingly, the High Court allowed the writ petitions, refused to interfere with the orders in relation to the appointment of the administrators, and directed the State to provide all facilities so that the democratic process of the election is not hampered.

Cause Title- Rina Kumari v. State of Jharkhand & Ors.

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