MISSION GURGAON DEVELOPMENT
                                 A Peoples’ Movement
                             543, Sector ...
Appeal before the High Court and the Division Bench of the High Court by the impugned judgment
held that the timeframe giv...
account these factors and applying the principles of golden rule of interpretation, the object and
purpose of Article 243-...
13. In any case we place below our request as mandated by the Constitution and the existing law on
elections / law on muni...
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Letter To State Election Commission Haryana and Chief Minister Haryana 6 Feb 2010

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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.

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Letter To State Election Commission Haryana and Chief Minister Haryana 6 Feb 2010

  1. 1. MISSION GURGAON DEVELOPMENT A Peoples’ Movement 543, Sector 23, Gurgaon – 122017, Haryana Tel: 9810110426, 9810748945, 9312404269, 9818768349; E-mail: missiongurgaondevelopment@gmail.com To, 6th February 2010 Sh.Dharam Vir, IAS (Retd.) State Election Commissioner State Election Commission, Haryana Nirvachan Sadan, Plot No.2, Sector-17, Panchkula. Haryana 134117 Registration of voters for Municipal Corporation Gurgaon for elections due within six months of dissolution of erstwhile Gurgaon Municipal Council on 2nd June 2008 Ref: (1) SEC Haryana letter No SEC/2ME/2008/6481 dt 14 Jul 2008 giving directions which permit use of defective ECI voter lists of Gurgaon for MCG elections. (2) SEC Haryana letter No SEC/2ME/2010/62 dt 27 Jan 2010. (3) Our letter dt 9 Jan 2010. 1. The constitutional requirement, upheld in 2006 SC judgment in Kishan Sing Tomar vs MC Ahmedabad on 19 Oct 2006, to hold local bodies election within 6 months of the 2nd June 2008 dissolution of erstwhile Gurgaon Municipal Council that is by 2nd Dec 2008 was conveyed to you vide Annex 'A' / para 2 of our letter dated 9th Jan 2010. 2. The case "Kishan Sing Tomar" has all the ingredients of the situation amounting to breakdown of the constitutional provisions on local bodies elections that exist in Gurgaon Municipality today. 3. To better appreciate this allegation, we quote from the judgment: "The appellant apprehended that the authorities may delay the process of election to constitute the new Municipal body and therefore filed the aforesaid writ petition .... The AMC filed an affidavit before the High Court stating that it was the responsibility of the third respondent, namely, the State Election Commission, to conduct the elections in time. The State Election Commission, in a separate affidavit in reply, submitted that ...the State Govt. had issued a Notification on 8th June, 2005 determining the wards for the city of Ahmedabad by which the total number of wards had been increased from 43 to 45 and in view of the increase in the number of wards, the Commission was required to proceed with the exercise of delimitation of the wards of the city of Ahmedabad in accordance with the provisions of the Bombay Provincial Municipal Corporation (Delimitation of Wards in the City & Allocation of Reserved Seats) Rules, 1994 and that the Commission had issued a circular requiring the Collectors and the Designated Officers to furnish the details and to make proposals for delimitation of the wards. The Commission contended that it would take two months’ time to complete the process of delimitation as the preparation of voters’ list in each ward had to be revised ...it would take at least six months’ time for completing the process of election and the Commission could act only after the State Govt. issued the notification. The State Govt. produced a chart showing the detailed steps taken by the State Govt. at various stages culminating in the issue of Notification dated 8th June, 2005. The appellant contended before the Single Judge that in view of Article 243-U of the Constitution, the authorities were bound to complete the process at the earliest ... The learned Single Judge accepted the timeframe suggested by the State Election Commission ...Aggrieved by the decision of the Single Judge, the appellant filed a Letters Patent www.missiongurgaondevelopment.org © 2009
  2. 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 2
  3. 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." 3
  4. 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 4

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