Any attempt to hold elections based on the defunct lists of Election Commission of India would be no election at all in the facts and circumstances of this case. Many electoral registration complaints are pending resolution. The basis documents related to electoral registrations for 2008, 2007, 2006, 2005 and 2004 are stated to be not traceable/ missing by Gurgaon Administration and hence Form 7 complaints cannot be fairly processed/ adjudicated.
2. Appeal before the High Court and the Division Bench of the High Court by the impugned judgment
held that the timeframe given by the State Election Commission was perfectly justified and the
Election Commission was directed to begin and complete process as per the dates given in its
affidavit and the L.P.A. was dismissed. Aggrieved thereby, the present appeal is preferred before us
by the appellant....the counsel for the State Election Commission contended that every effort was
made by the Election Commission to conduct the elections before the stipulated time, but due to
unavoidable reasons, the elections could not be held and the preparation of the electoral rolls and the
increase in the number of wards had caused delay in the process of election and under such
circumstances the delay was justified in conducting the elections."
4. The Supreme Court noted "The question that arises for consideration is whether Article 243-U of
the Constitution, by which the duration of the Municipality is fixed is mandatory in nature and any
violation could be justified in the circumstances stated by the respondents.
"Article 243-U ....
(3) An election to constitute a Municipality shall be completed,........
(b) before the expiration of a period of six months from the date of dissolution:"
5. The Supreme Court opined "It is incumbent upon the Election Commission and other authorities
to carry out the mandate of the Constitution and to see that a new Municipality is constituted in time
and elections to the Municipality are conducted before the expiry of its duration of five years as
specified in Clause (1) of Article 243-U.
6. The Supreme Court noted "The counsel for the respondents contended that due to multifarious
reasons, the State Election Commission may not be in a position to conduct the elections in time and
under such circumstances the provisions of Article 243-U could not be complied with stricto
sensu..... The words, ’superintendence, direction and control’ as well as ’conduct of elections’ have
been held in the "broadest of terms" by this Court in several decisions including in Re : Special
Reference No. 1 of 2002 (2002) 8 SCC 237 and Mohinder Singh Gill’s case (1978) 1 SCC 405 and
the question is whether this is equally relevant in respect of the powers of the State Election
Commission as well.
7. The Supreme Court ruled "From the reading of the said provisions it is clear that the powers of
the State Election Commission in respect of conduct of elections is no less than that of the Election
Commission of India in their respective domains. These powers are, of course, subject to the law
made by Parliament or by State Legislatures provided the same do not encroach upon the plenary
powers of the said Election Commissions. The State Election Commissions are to function
independent of the concerned State Governments in the matter of their powers of superintendence,
direction and control of all elections and preparation of electoral rolls for, and the conduct of, all
elections to the Panchayats and Municipalities. Article 243 K (3) also recognizes the independent
status of the State Election Commission. It states that upon a request made in that behalf the
Governor shall make available to the State Election Commission "such staff as may be necessary for
the discharge of the functions conferred on the State Election Commission by clause (1). It is
accordingly to be noted that in the matter of the conduct of elections, the concerned government shall
have to render full assistance and co-operation to the State Election Commission and respect the
latter’s assessment of the needs in order to ensure that free and fair elections are conducted. Also, for
the independent and effective functioning of the State Election Commission, where it feels that it is
not receiving the cooperation of the concerned State Government in discharging its constitutional
obligation of holding the elections to the Panchayats or Municipalities within the time mandated in
the Constitution, it will be open to the State Election Commission to approach the High Courts, in
the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate
writ directing the concerned State Government to provide all necessary cooperation and assistance to
the State Election Commission to enable the latter to fulfill the constitutional mandate. Taking into
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3. account these factors and applying the principles of golden rule of interpretation, the object and
purpose of Article 243-U is to be carried out."
8. The wardbandhi was to be notified for objections, objections were to be received and door to door
registration of voters was to be completed and elections were to be held by 2nd Dec 2008. The
extension beyond 2nd Dec 2008 is therefore clearly ultra vires the Constitution of India as
interpreted by the Supreme Court hereinabove. The State Government is well outside the scope of
law laid down in repeatedly ordering extensions for six months at a time from 2nd Dec 2008 to 2nd
June 2009, 2nd Dec 2009, 2nd Jun 2010 - your letter hints at further extension in area of Municipal
Corporation of Gurgaon originally notified on 2nd Jun 2008, and fresh wardbandhi - more delay,
perhaps upto 2nd Jun 2011.
9. What is most shocking is that you have taken a mulish stand that door to door population survey
cannot even commence in absence of finalisation of wardbandhi, wherein your letter No
SEC/2ME/2010/62 dt 27 Jan 2010 says "The State Government had constituted Municipal
Corporation, Gurgaon on 2.6.2008 and the election of the Corporation is due to be completed by 1st
June, 2010. The delimitation of wards is yet to be done by the State Government. At once, the work
of delimitation of wards is completed by the State Government, the preparation of electoral rolls of
Municipal Council, Gurgaon shall be done after conducting the door to door survey, as the
Commission doing earlier in the case of other municipalities." A plain reading of Section 6 (1) with
Explanation thereto, of the Haryana Municipal Corporation Act 1994 reveals that "population shall
be ascertained on the spot in respect of such area" and "Explanation. – Here “population” means the
population as ascertained locally by the staff, deputed by the Commissioner, after going from door to
door in the Corporation."
10. That the State Election Commission proposes to carry out door to door exercise after, rather than
before, population survey, in breach of the law, has come as a great shock to the democratic
aspirations of people of Gurgaon. Apparently assisted by your incorrect stand on sequence of
activity, the State Government has chosen to downside the estimated population (without door to
door population survey) and has estimated population of 10 lakhs/ 35 wards as against the more
realistic estimate of 20 lakhs/50+ wards mentioned in our letter dt 9 Jan 2010.
11. It was incumbent upon the State Election Commission, Haryana and other authorities to carry
out the mandate of the Constitution and to see that a new Municipality is constituted in time and
elections to the Municipality are conducted before the expiration of a period of six months from the
date of dissolution of Municipal Corporation of Gurgaon on 2nd Jun 2008, as specified in Clause (3)
(b) of Article 243-U. These mandatory constitutional provisions have been breached and are
continuing to be breached, seemingly, with your willing and active support. Such a grave
constitutional breach seems to us, to be incongruent with your high constitutional position.
12. We therefore humbly suggest that, in case all your efforts to contain the situation within the four
walls of the Constitution are thwarted by the State machinery, you may need to take resort to the
suggestion of the Supreme Court, "State Election Commission, where it feels that it is not receiving
the cooperation of the concerned State Government in discharging its constitutional obligation of
holding the elections to the Panchayats or Municipalities within the time mandated in the
Constitution, it will be open to the State Election Commission to approach the High Courts, in the
first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate
writ directing the concerned State Government to provide all necessary cooperation and assistance to
the State Election Commission to enable the latter to fulfill the constitutional mandate."
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4. 13. In any case we place below our request as mandated by the Constitution and the existing law on
elections / law on municipalities.
(a) Immediate, and on the spot, public declaration of the new notified area of Municipal Corporation
of Gurgaon without further delay, since Gurgaon Municipality was dissolved on 2nd Jun 2008.
(b) Immediate, and on the spot, door to door population survey of area notified for Gurgaon
Municipality, under Section 6 and Explanation thereto, of Haryana Municipal Corporation Act 1994.
There is no need to wait for ward delimitation to be finalised as Locality/Road/Street/House of
Gurgaon Municipality are well known to the Gurgaon Administration.
(c) Ward/Locality/Road/Street/House wise registration of eligible voters residing in Gurgaon
Municipality, to be carried out afresh by intensive revision without any reference to any past lists of
Election Commission of India. Any attempt to hold elections based on the defunct lists of
Election Commission of India would be no election at all in the facts and circumstances of this
case. Many electoral registration complaints are pending resolution. The basis documents
related to electoral registrations for 2008, 2007, 2006, 2005 and 2004 are stated to be not
traceable/ missing by Gurgaon Administration and hence Form 7 complaints cannot be fairly
processed/ adjudicated. There is also no need to wait for ward delimitation to be finalised as
Locality/Road/Street/House of Gurgaon Municipality are well known to the Gurgaon
Administration.
(d) In case State machinery thwarts efforts of State Election Commission to hold elections "stricto
sensu" State Election Commission may approach the High Courts, in the first instance, and thereafter
the Supreme Court for a writ of mandamus or such other appropriate writ, as desired.
Thanking You,
Yours faithfully
Mission Gurgaon Development Core Committee Members
Date: 6th February 2010
Place: Gurgaon
Maj Gen Satbir Singh, SM Mrs Vakul Cowshik
Vice Chairman IESM President National Citizens Movement
Sarvadaman Oberoi Bhawani Shankar Tripathy
Vice President National Citizens Movement Coordinator, CTF-W
Copy to:
Shri Bhupinder Singh Hooda,
Hon’ble Chief Minister of Haryana,
Kothi No. 1, Sector 3,
Chandigarh - 160003
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