ORDER
V.V.S. Rao, J.
1. Government of Andhra Pradesh in Municipal Administration and Urban Development Department is the appellant in this letters patent appeal, filed against the judgment of the teamed single Judge dated 31-7-2000 in Writ Petition No. 14245 of 2001. The parlies herein shall be referred to by their status in the writ petition.
2. The petitioner (1st respondent herein) filed the above-mentioned writ petition praying for a declaration that the action of the authorities in not conducting elections to Municipal Corporation of Hyderabad, is arbitrary, illegal, violative of fundamental right under Article 14 of the Constitution and contrary to the provisions contained in Part IX-A of the Constitution. The petitioner also prayed for a consequential direction to the respondents, namely the Government of Andhra Pradesh, the Municipal Corporation of Hyderabad and the State Election Commission (for short 'the SEC') to take immediate steps for the conduct of elections to the 2nd respondent-Corporation.
3. In the affidavit accompanying the writ petition the petitioner while referring to various provisions of the Constitution to writ Articles 40, 243P, 243R, etc., states that after coming into force of the Constitution (Seventy Fourth Amendment) Act, 1992 with effect from 1-6-1993 the power of the State to make any law for the creation, constitution and working of Municipal Corporation is circumscribed by Part IX-A of the Constitution. Therefore, itis stated the law governing Municipal Corporation of Hyderabad is required to be in consonance with those provisions of the Constitution, Inspite of this, for about a decade the residents of the Corporation are deprived of a local self-Govemment. Their failure to conduct elections to the 2nd respondent is in clear violation of the provisions of the Constitution. It is also stated that the 3rd respondent, SEC, has been persistently insisting for conduct of elections and for the said purpose as early as in April, 1998 the said authority organized a conference. At that conference the State Government took a stand that as steps to organise greater Hyderabad are afoot, the elections will be conducted five months after the constitution of greater Hyderabad. Though such a period was over, the authorities did not conduct elections. When elections were not held for Mandat Parishad Territorial constituencies and Zilla Parishad Territorial constituencies a Division Bench of the High Court declared the same impermissible and likewise when elections were not held for certain local bodies under Warangal Municipality, a Division Bench of the High Court directed to conduct elections. Therefore, the'petitioner sought the prayer as noticed hereinabove.
4. The writ petition was filed on 13-7-2001. The learned single Judge before whom the matter was listed for admission, while issuing notice before admission on 13-7-2001 directed the Additional Advocate-General to submit the schedule for holding the elections to the Municipal Corporation of Hyderabad. In furtherance thereto the 1st respondent filed a counter-affidavit on 23-7-2001 along with a statement showing minimum time required for completing the process of notifying the reservation of seats/wards in the Municipal Corporation of Hyderabad and intimating the 3rd respondent for further action.
5. The counter-affidavit affirmed by the Secretary to the Government in Municipal Administration and Urban Development Department is to the following effect. In exercise of powers conferred on them under Section 585 read with Section 5(2) of the Hyderabad Municipal Corporations Act, 1955 (for short 'the Act') and Section 6 of the A.P. Municipal Corporations Act, 1994 (for short 'the Corporations Act'), the Government of Andhra Pradesh made Municipal Corporation (Reservation of Seats) Rules, 1995 (hereinafter referred to as 'the Reservation Rules'). These deal with reservation of seats in the 2nd respondent as well as of other corporations in the State in favour of Scheduled Castes/Scheduled Tribes/ Backward Classes (hereinafter referred to as SC/ST/BC). As per Rule 10 of the Reservation Rules the electoral authority has to determine the seats reserved for BCs after arriving at determining the wards proposed to be reserved for SCs/STs. A Division Bench of the High Court in Prakasam District Sarpanchas Association v. Govt. of A.P., 2001 (I) ALD 143, has invalidated the procedure of reservation in favour of BCs through drawal of lots and further directed the State Government to identify BC voters from the existing voters list and on such identification reserve seats/ wards in favour of BCs according to the Rules in descending order on rotation basis. The Division Bench also directed that on completion of the process of reservation, the State Government must issue revised notification and intimate the same to the SEC.
6. So as to be in tune with the judgment of the Division Bench in Prakasam District Sarpanchas Association case (supra), the State Government amended Rule 10 ofthe Reservation Rules vide G.O. Ms. No.334, Municipal Administration and Urban Development (Elecs.II) Department, dated 21-7-2001. According to these Rules,after arriving at the wards to be reserved for STs/SCs in Municipal Corporations, the seats to be reserved for BCs in the remaining wards shall be determined on rotation basis with reference to the largest percentage of voters of the said category to the total number of voters in the ward in the corporations in the descending order.
7. For the purpose of enforcing the amended rule, the authorities are taking into consideration the Multi-Purpose Household Survey data (MPHS data). Further, the exercise of delimitation of wards was completed by issuing a notification dated 23-6-2001 dividing 12 Assembly constituencies within the area of Municipal Corporation of Hyderabad into 100 wards. As per the provisions of Article 243T of the Constitution, the State is obliged to reserve in favour of SCs/STs/BCs on the basis of their population. Though 1991 census is the relevant census in accordance with the definition of 'population' contained in Article 243-P(g), it does not contain the population figures for BCs. Therefore, the population figures of BCs from MPHS data is required to be divided into Assembly constituency polling station-wise electoral list and starting from this. This exercise is already commenced and is expected to be completed by 6-8-2001. After this the backward class voters are required to be identified from MPHS data. There are about 2846 polling stations in 12 Assembly constituencies and the identification of BC voters and marking the same in the Assembly constituencies polling station- wise electoral list is expected to lake minimum of 30 days commencing from 7-8-2001 to 5-9-2001. After that exercise, the electoral lists marked with BC voters are to be displayed giving 15 days time for filing objections. Enquiry into objections, sorting out claims and objections and field verification would take another period of 31 days whereafter another period of 8 days is required for all the sixDeputy Municipal Commissioners and one Zonal Commissioner of the Corporation to hear public grievances before validating the electoral lists. Thereafter, preparation, publication of final ward-wise electoral list for 100 wards with BC voters including verification of wards, bifurcation of ward-wise electoral rolls, physical verification of 3600 polling stations, draft publication of list of polling stations, etc., would take 60 days. This exercise has to be undertaken for reservation of seats for STs/SCs, women and BCs which would result finally in issuing gazette notification of the reservation. Therefore, a minimum period of 195 days is required from 23-7-2001 till 2-2-2002.
8. The 3rd respondent-SEC did not file any counter-affidavit in writ petition. A counter-affidavit is, however, filed before us in the writ appeal and we will advert to the same at appropriate place.
9. The learned single Judge by impugned judgment thought it fit not to go into reasons as to why elections could not be held for a period of more than a decade. The learned Judge hold that the provisions of the Act and the rules have to be interpreted to be in tune with the constitutional mandate and holding of elections is a rule, the postponement whereof is an exception. In view of this matter the learned Judge found the time required by the State Government is unreasonable. It was observed:
According to the averments made in the counter-affidavit, the number of voters in the municipal Corporation of Hyderabad area is about 27.14 lakhs. There are about 2846 polling stations in the 12 Assembly Constituencies, falling within the Municipal Corporation of Hyderabad area. All that the State is required to do is to identify the backward class voters from the date already available with the State. The backwardclass voters are required to be identified by making the same in the Assembly Constituencies polling station-wise electoral list. In the circumstances, it is difficult to accept the plea of the State that it would require a minimum period of 195 days i.e., from 23-7-2001 to 2-2-2002 to complete the process. Where there is a will there is a way. It may not be difficult for the mighty State with men and machinery and resources at its command to undertake the simple exercise of identification of the backward class voters for the purpose of reservation of seats to the Municipal Corporation of Hyderabad and complete the same expeditiously.
10. On the above premise the learned single Judge disposed of the writ petition in the following manner:
Having regard to all the facts and circumstances of the case, I consider it appropriate to direct the respondents to complete the exercise of identification of backward class voters and make reservation of seats (wards) in favour of Scheduled Castes and Scheduled Tribes, Women and Backward Classes and accordingly issue notification of the reservation of the seats and intimate the same to the SEC. The SEC shall take necessary steps to hold the elections to the municipal Corporation of Hyderabad. The process in this regard ultimately culminating in the declaration of the result of the elections shall be completed within a period of ninety days from today.
11. The learned Additional Advocate-General submits that in exercise of the jurisdiction under Article 226 of the Constitution this Court cannot sit in appeal over the decision of the Government in fixing the time schedule for completion of process of reservation of seats (wards) to BCs. The power of judicial review onlyextends to scrutinizing the decision of the executive on the touchstone of Wednesbury test of unreasonableness and the choice of options available for the authorities would not normally be substituted by the Court's view merely because the Court thinks something other than the decision of the executive is more reasonable. The State Government has fixed time schedule having regard to the other provisions of the Constitution as well as mandatory legal requirements which are to be completed before finally inviting the reservation of wards/seats. The learned Additional Advocate-General also submits that by the impugned judgment without deciding question of reasonableness of time sought, this Court directed to complete the process of elections within 90 days. Article 243ZA empowers the SEC alone to conduct elections to Municipal Corporations after receiving intimation of reservation of seats for ST/SC/ BCs. The process of reservation involves colossal exercise of identification of BC voters, providing reservation, preparation of electoral rolls, etc., and when the SEC itself requires some time, the mandamus to complete the entire election process within a short duration of 90 days cannot be sustained. He submits that the maxim lex non cogit ad impossibilia is applicable to this case.
12. The learned Additional Advocate-General places strong reliance on the judgments of the Supreme Court in Union of India v. G. Ganayutham, : (2000)IILLJ648SC , Tata Cellular v. Union of India, : AIR1996SC11 and a Division Bench judgment of the Court to which one of us (VVSR, J.) is a member in Pennar Delta Ayacutdars Association v. Govt. of Andhra Pradesh, : 2000(3)ALD715 , in support of his proposition that the Wednesbury test of unreasonableness would be sufficient compliance of law while exercising power under the Constitution. In support of his contention that law does not compel a personto do the impossible, he relied on the judgment of the Supreme Court In. Re Presidential Elections, 1974, AIR 1974 SC 1682, Mohammed Gazi v. State of M.P., 2000 (4) SCC 342 and an unreported judgment of this Court in Writ Appeal No. 1838 of 1999 and batch, dated 2-8-2001. We may also notice that the learned Counsel places reliance on the judgment of the Supreme Court in Hotel Balaji v. State of Andhra Pradesh, : AIR1993SC1048 , to contend that when the existing rules have or likely to suffer constitutional invalidation due to judicial review, it is always open to the rule making authority to act and set its house in order by amending the rules.
13. Before we notice the submissions of the Counsel for writ petitioner, we may briefly refer to the counter-affidavit filed on behalf of the 3rd respondent SEC. The affidavit affirmed by the Secretary to the SEC is to the following effect. In accordance with the provisions of Section 9 of the Act read with the Reservation Rules issued in G.O. Ms. No.634, dated 24-2-1994, the time required for preparation and publication of electoral roll is 50 days but the same could be compressed to 35 days having regard to the rules which empower the 3rd respondent to do so. Thereafter the Commission requires 40 days from the date of notification of reservation of seats/wards for completing the election process.
14. Sri S. Ramachandra Rao, the learned senior Counsel for the petitioner has invited the attention of this Court to the statement filed by the government showing the minimum time required and submits that in respect of certain stages the time could be pruned and compressed and it is still possible to complete the entire elections within 90 days as held by the learned single Judge.
15. The short question for consideration in this writ appeal is of great significance.The question is whether the time required by the State Government to complete the process leading to issue of notification of reservation of seats/wards for conducting elections to corporations is unreasonable and whether it is within the scope of judicial review to disagree with the reasonableness of time required and substitute the Court's view for that of the Government.
16. At the outset we must say that having regard to the provisions of Article 243U of the Constitution which cane into force with effect from 1-6-1993, an election to constitute a municipal corporation shall be completed before expiry of the duration of five years of earlier duly constituted corporation. There cannot be any doubt on this. Be it also noted that after coming into force of the provisions in Part IX-A of the Constitution with effect from 1-6-1993, no elections were conducted for Municipal Corporation of Hyderabad. The learned Additional Advocate-General, therefore, concedes that there is a necessity for conduct of elections to the Municipal Corporation of Hyderabad. However, he submits that having regard to the provisions of Article 243-T, the Act and the rules certain mandatory requirements are to be adhered to before publishing the notification of reservation of seats/wards in accordance with Articles 243-T(1) and (6) read with Section 5(2) of the Act, Section 6 of the Corporations Act and the Reservation Rules. Therefore, a minimum period 195 days is reasonable time. Likewise, the 3rd respondent contends that 75 days is reasonable time for conduct of elections which includes preparation and publication of electoral rolls.
17. The consideration of the issue requires a brief glance at the scheme of the Constitution in relation to municipalities. Part IX-A of the Constitution clothes the Municipalities/Municipal Corporations with constitutional robe. For effectually carryingout the scheme the Legislature of the State, the Government of the State and SEC are the main constitutional functionaries recognised under Part IX-A of the Constitution. The State Legislature is assigned certain functions; for instance, under Articles 243R, 243S, 243-T (1) and (6), 243U(1)(b), 243D, 243V, etc. The Government of the State and its officials are vested with the power under the Reservation Rules to specify by notification the number of seats reserved for ST/SC/BC and women. The Government is also required, when so requested by the SEC to make available such staff as may be necessary for discharging the functions conferred on the SEC in relation to conduct of elections of municipal bodies (Articles 243-7A read with Article 243K(3)]. Therefore, one should keep in view the dichotomy of functions between the Government of the State and the SEC.
18. The power of superintendence, direction and control of the preparation of electoral rolls and the conduct of elections is vested in the SEC whereas the power to specify the seats reserved for ST/SC/BC by notification is given to the Government. A reading of clause (2) of Article 243K shows that the SEC is an office created by the Constitution to be autonomous and independent and in fact the SEC shall not be removed from office except in the like manner as a Judge of a High Court on grounds of proved misbehaviour or incapacity. Any direction from this Court, therefore, cannot be one direction but it should be two directions- one to the Government of the State and another to the SEC which is vested with the power in relation to preparation and finalisation of electoral rolls and conducting elections. We are only adverting to this aspect of the matter due to reason that the 1st respondent contends that the Government itself requires 195 days for specifying the reservations and, therefore, any direction to both theGovernment of Andhra Pradesh and the SEC to complete the entire election process within 90 days would not only be unreasonable but impossible. As noticed earlier, reliance is placed on the legal maxim lex non cogit ad impossibilia. Reliance is also placed on the judgment of the Supreme Court in Writ Petition (Civil) No.719 of 1995, dated 12-8-1997.
19. At this stage we must also make a passing reference to provisions of Articles 243ZF and 243U(3) of the Constitution. Article 243U(3) states that an election to constitute a municipality shall be completed before the expiry of duration of five years from the date appointed for its first meeting and no longer. By the time Constitution (Seventy Fourth Amendment) Act came into force with effect from 1-6-1993 the term of Municipal Corporation of Hyderabad expired and it was under a Special Officer. As per proviso to Article 243ZF all municipalities existing immediately before the commencement of Constitution (Seventy Fourth Amendment) Act shall continue till expiration of the duration unless dissolved by resolution passed by the Legislative Assembly of the State. Both these situations are absent in the case of Municipal Corporation of Hyderabad.
20. There is yet another aspect which has a bearing on the question involved in this case. If there is a Municipality by reason of Article 243U(3)(a) elections shall have to be completed before expiry of duration of five years. However, the same is not the case when the existing Municipality is dissolved. In such a case by reason of Article 243U(3)(b) elections to constitute a new Municipality, shall be completed before the expiration of a period of six months from the date of its dissolution. The proviso to Article 243-U(3) further says that if the remainder period for which dissolved Municipality would have continued is less than six months it shall not benecessary to hold any election under the said clause. We extract Article 243-U(3).
243-U. Duration of Municipalities, etc:--
(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Municipality shall be completed,--
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution :
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (I) had it not been so dissolved.
21. Clause (1) and clause (3)(b) of Article 243-U(3) read together lead to a conclusion that if a municipality is dissolvedbefore the expiry of the term of five years, elections shall have to be conducted before expiry of period of six months. This constitutional position is beyond pale of doubt and cannot be ignored.
22. The Supreme Court in the above referred unreported judgment held as under:
The concerned States cannot be permitted to withhold election of Panchayats except in case of genuine supervening difficulties to hold such elections e.g., unforeseen natural calamities in the State like flood, earthquake, etc., or extremely urgent situation prevailing in the State for which election of the Panchayats cannot be held within the time frame. It will be unfortunate if the concerned States remain insensitive to the Constitutional mandate of holding election of Panchayats in time and by unjustified action, allows old bodies to continue in the office of the Panchayats. We hope and trust that the State Government will be alive and sensitive to the duties and responsibilities flowing from the mandates of the Constitution in holding Panchayat elections.
23. As per said judgment, postponement of elections in case of genuine supervening difficulties is permissible. The Supreme Court also points out by way of illustration unforeseen calamities like floods, earthquakes, extremely urgent situation prevailing in the State for reason of which elections cannot be held. A reading of Article 243-U(3), 243-ZA and the judgment of the Supreme Court, to our mind, shows that the conduct of elections to municipal bodies as a general rule should be completed within the stipulated time before expiry of the duration or in case of dissolution within six months from the date of the dissolution unless there are exceptional circumstances.
24. It is also appropriate to refer to Anugrah Narain Singh v. State of U.P., : (1996)6SCC303 , which was a case under Part IX-A of the Constitution. Anugrah Narain Singh approached the Allahabad High Court praying for a mandamus directing the State Government to hold municipal elections by 31-5-1994 on the ground that for a decade no municipal elections had been held in the State of U.P. The Allahabad High Court directed the State to hold elections to municipal corporations by 31st July,. 1995 which was later extended by the Court till 30-11-1995. An election notification was issued. Yet another writ petition was filed before the Allahabad High Court challenging the election notification for holding municipal elections in the State. Another Division Bench of Allahabad High Court passed an order staying the election process. When the matter was brought before the Supreme Court by way of special leave petition on 16-11-1995 the Supreme Court passed the following order. It is apposite to excerpt the same:
After hearing the Counsel for the parties and after considering the facts and circumstances of the case, we are, prima facie, of the opinion that there are no sufficient grounds for canceling the elections. Accordingly, the following directions are made:
1. The elections scheduled on 20-11-1995 and 26-11-1995, for the offices of Mayor shall go on as scheduled.
2. The elections scheduled to be held on 20-11-1995 for the wards in the 9 Municipal Corporations shall go on as scheduled.
3. The elections for wards scheduled on 22-11-1995 for Nagar Palikas (446 in number) shall also go on as scheduled.
4. The elections for the wards to the 2 Municipal Corporations scheduledon 26-11-1995 shall also go on as scheduled.
5. So far as the polling, which was to be held on 17-11-1995, i.e., tomorrow for the 244 Nagar Palikas, is concerned, it is not practicable or possible to hold the elections tomorrow, i.e., 17-11-1995. In consultation with the learned Counsel for the State Election Commission, we direct that these elections shall stand postponed to and be held on 24-11-1995.
6. It is equally clear that the results of these elections shall be subject to the orders that may be passed in this matter.
7. It is made clear that when we have said in the above directions that elections shall be conducted as scheduled, it means that the elections shall be held and concluded as notified and results declared.
25. We are referring to the order passed by the Supreme Court only to show that though elections had not been conducted for about a decade for Municipal Corporations and Municipalities in the State of U.P., the Supreme Court thought it fit to uphold the view of the Allahabad High Court giving sufficient time i.e., more than one year for conducting elections.
26. The maxim lex non cogit ad impossibilia (the law does not compel a man to do that which he cannot possibly perform) is well accepted in Indian law and indeed in Indian Constitutional law. In Re Presidential Elections, 1974 (supra) a seven Judge Bench of the Supreme Court deals with this maxim in connection with Presidential election. The relevant observations are as under:....The maxim of law impotentiaexcusat legem is intimately connectedwith another maxim of law lex nan cogit ad impossibilia. Impoentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him'. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control like the act of god, the circumstances will be taken as a valid excuse......
27. In Mohammed Gazi 's case (supra) the Supreme Court referred to earlier judgments and approved the applicability of the maxim in the following manner:
This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit and impossibilia - the law does not and its administration is understood to disclaim as it does in its genera! aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey, : [1988]1SCR118 and Gurusharan Singh v. New Delhi Municipal Committee, : [1996]1SCR1154 .
28. We may also beneficially quote Section 271 from 'Statutory Construction' by Earl T. Crawford which is as follows :
Even where a statute is clearly mandatory or prohibitory, yet, in many instances,the Courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in consideration of justice. It is a well known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient calibre to excuse or justify a technical violation of the law.
29. If the performance of a legal duty is impossible by reason of obligation to comply with mandatory legal requirements, like preparation and publication of BC voters list, BC population list, calling for objections, etc., it is also a compelling impossibility necessitating the option of general exception in the facts of this case. In such circumstances, can a mandamus be issued to compel to complete the election process within 90 days which might compel the authorities to ignore the provisions of law and skip certain important stages? The celebrated classical book by Herbert Broom on legal maxims gives the following exposition on the subject of issue of mandamus in such a case.
The maxim under notice may be exemplified by reference to the law of mandamus. A writ or order of mandamus to a railway company, enjoining them to prosecute works in pursuance to statutory requirements, supposes the required act to be possible, and to be obligatory when the writ or order issues; and, in general, suggests facts showing the obligation, and the possibility of fulfilling it; though, where an obligation is shown to be incumbent on the company, the onus of proving that it is impossible lies upon those who contest the demand of fulfilment; if they succeed in doing so, the doctrine applies that 'on mandamus,nemo tenetur ad impossibility'. Upon the same principle, where an order had been made by the Board of Trade upon a railway company requiring the company to carry a turnpike road across the railway, the Court refused a mandamus to compel the company to carry out the order upon proof that the company had no funds, was practically defunct, and was not in a position to obey the writ if granted.
30. Therefore, a writ in the nature of mandamus ordinarily cannot be issued to perform the impossible. This principle is even applicable in the matter of enforcement of constitutional duties as well. A question of interest would be whether the said legal maxim can be a defence for escaping the constitutional obligations under Part IX-A of the Constitution of India. As observed by the Supreme Court in the unreported judgment referred to hereinabove, the general rule in Article 243-U(3) has exception and the present case falls in that groove. Having regard to the statement filed by the Government showing the minimum time required and the counter filed on behalf of the SEC for minimum time required for conduct of elections after the notification of reservations, we are satisfied that for both the constitutional authorities it is impossible to commence and complete the entire election process for Municipal Corporation of Hyderabad within a period of 90 days as directed by the learned single Judge.
31. There cannot be any gain-saying that Constitution and constitutional values are to be upheld. In a matter like this, embracing a pedantic and textual approach and compelling the 1st and 3rd respondents to complete elections within a time of 90 days which the Court perceives to be reasonable might end up in disaster. The bureaucratic decision-making passes through labyrinth of laws, rules, regulations and departmental precedents, which involve time.If everything were rushed up we would only deprive large body of voters both from exercising their right to contest as well as right to vote. Such a chaotic state of administration is certainly a circumstance to be taken into account while dealing with a democratic exercise with umpteen administrative complexities. In this connection, we may refer to the observations of Lord Denning M.R. in Bradbury v. London Borough of Enfield, (1967) 3 All. ER 434:....If a local authority does not fulfil therequirements of the law, this Court will see that it does fulfil them. It will not listen readily to suggestions of 'chaos'. The department of education and the Council are subject to the rule of law must comply with it, just like everyone else. Even if chaos should result, still the laws must be obeyed but I do not think that chaos will result. The evidence convinces me that the 'choas' is much over-stated........ I see no reason why theposition should not be restored, so that the eight schools retain their previous character until the statutory requirements are fulfilled. I can well see that there may be a considerable upset for a number of people, but I think it far more important to uphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. We must see that their rights are upheld.
32. The above characteristic andforceful observations from Bradbury (supra) were quoted with approval by O. Chinnappa Reddy, J., in the Supreme Court judgment in B. Prabhakar Rao v. State of A.P., : AIR1986SC210 , while dealing with constitutional validity of a State Act thus:.....On the other hand, it would be agreat injustice to deny justice to thosewho have suffered injustice most merely because it may cause inconvenience to the administration. We are governed by the Constitution and constitutional rights have to be uphold. Surely the Constitution must take precedence over convenience and a Judge may not turn a bureaucrat. We do not mean to suggest that creation of a chaotic state of administration is not a circumstance to be taken into account. If may be possible that in a given set of circumstances, portentous administrative complexity may itself justify a classification. But, there must be sufficient evidence of that - how the circumstances will lead to chaos.....
33. What would be the reasonable time for completing the stage of specifying reservations for the purpose of Article 243-T, Section 5(2) of the Act and Section 6 of the Corporations Act? The concept of reasonable period shall vary from case to case and from situation to situation. As noticed hereinbefore, Article 243-U(3) mandates holding of election within a period of six months from the date of dissolution of the municipal body. But the said period was provided in a normal situation. If a time lesser than six months is granted by the Court, the State itself is to be blamed therefor. Even knowing fully well that a writ petition has been filed questioning the validity of its inaction in holding elections for the last about 10 years the State has not taken any steps for preparation of the electoral rolls and identification of backward classes.
34. It is not denied by the learned Counsel for the petitioner that elections cannot be conducted straightaway without there being an electoral roll which again has to be prepared in accordance with the rules prescribed under the law. It is also not denied that under Article 243-T seats shall have to be reserved for ST/SC inevery municipality and in accordance with Article 243-T read with Section 5(2)(b) of the Act and Section 6 of the Corporations Act, one third of the seats have to be reserved for the members belonging to BCs and for the said purpose the Government has to notify the reservations. The preparation and publication of voters list and reservation of seats for SC/ST/BC are two preliminary mandatory stages. Unless this is completed the Election Commission cannot conduct elections under Article 243ZA.
35. In the field of administrative law if an impugned action or decision is unreasonable it should suffer invalidation. 'The terms 'irrationality' and 'unreasonableness' are often used interchangeably. Irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense of the term if it is unreasonable; if it is lacking ostensible logic or comprehensible justification' See De Smith's Judicial Review of Administrative Action, 5th revised Edn. by Lord Wolf and Jowell (1995). Lord Greene in Associated Provincial Picture Houses v. Wednesbury Corporation, 1948(1) KB 223, laid down the test of unreasonableness. This Wednesbury principle of unreasonableness was quoted with approval by the Supreme Court in Tata Cellular (supra) saying that 'irrationality succinctly means 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or all accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at.
36. The principle was reiterated in Ganayudham's case (supra). In a recent judgment in OM Kumar v. Union of India, (2001) 2 SCC 386, the Supreme Court after referring to Tata Cellular and Ganayutham observed:
Lord Greenes said in 1948 in Wednesbury case that when a statute gave discretionto an administrator to take a decision, the scope of judicial review would remain limited. He said that interference is not permissible unless one or the other of the following conditions were satisfied namely the order was contrary to law or relevant factors were not considered, or irrelevant were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in UK and in India to Judge the validity of administrative action.
37. It is also well settled that while testing the action on the ground of unreasonableness the mere fact that the Court thinks something to be reasonable does not make the impugned action liable to be set aside. Unless the action is unjust, capricious, inequitable the same cannot be invalidated by the Court on the ground of unreasonableness. The parties before us accept the legal position that unless the Government completes certain steps, the SEC cannot conduct elections.
38. The schedule of time required commences from 23-7-2001 and even according to the schedule, by 6-8-2001 the division of MPHS data Assembly constituency-wise is completed. As noticed, in the beginning of the judgment, the learned Additional Advocate-General submits that the Government requires 120 days for identifying BC voters from MPHS data and marking them in the Assembly electoral rolls, calling for objections and validating the BC voters in the electoral rolls after verification. This period of 120 days includes the period of training to be imparted to verification officers for a period of 10 days and marking BC voters in the electoral rolls as well as time required for making sufficient copies of the electoral rolls is 10 days. To our mind, this is too long a time for these two stages. The entire process of validatingthe marking of BC voters electoral rolls can be completed within a period of 80 days. Thereafter, even the preparation and publication of final electoral rolls and publication of notification of reservations can be completed within a period of 40 days. After publication of gazette notification specifying reservation of seats (wards) in Municipal Corporation of Hyderabad, the State Election Commission can complete the election process within a period of 60 days.
39. In the result, for the aforementioned reasons, we dispose of this writ appeal by modifying the order of the learned single Judge directing the Government to complete the process of identification of BC voters, preparation and publication of final electoral rolls with BC voters and specifying by gazette notification reservation of seats/ wards in Municipal Corporation of Hyderabad for backward classes and all connected requirements within a period of 120 days from today (as the process started on 23-7-2001) and in any event not later than 10-12-2001 and thereafter SEC shall commence and complete the entire election process within a period of 60 days from 10-12-2001. No costs.