Civil Writ Petition No.16165 o”
1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16165 of 2012 Date of Decision:
01. 04.2013 Jatinder Kalyan S/o Late Sh.
Sham Lal R/o Ward No.20, Balmiki Mohalla, Nehru Gate, Batala District Gurdaspur........Petitioner versus State of Punjab and others .........Respondents CORAM: HON'BLE Mr.JUSTICE RAMESHWAR SINGH MALIK 1
To be referred to the Reporters or No.?.”
2. Whether the judgment should be reported in the Digest ?.
Present: Mr.R.S.Ahluwalia, Advocate for the petitioner.
Mr.Pankaj Mulwani, DAG, Punjab.
Mr.G.S.Attariwala, Advocate for respondents No.5 & 6.
Mr.Ramanpreet Singh, Advocate for respondent No.7.
***** RAMESHWAR SINGH MALIK J.
(ORAL) Feeling aggrieved against the order dated 06.08.2012 (Annexure P-7) passed by Executive Officer, Nagar Council, Batala -respondent No.5, petitioner has filed the present writ petition under article 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari for quashing the impugned order dated 06.08.2012 (Annexure P-7).He further seeks a writ of mandamus directing respondent No.1 to notify the election of the petitioner for the office of President, Municipal Council, Batala, in terms of the Civil Writ Petition No.16165 o”
2. proceedings (Annexure P-4) of the Municipal House, Batala, as legally justified.
Election of the Municipal Council, Batala was held in the year 2008 and 33 members were elected.
Petitioner was also elected as member of Municipal Council, Batala from its Ward No.20.
In the fiRs.meeting of Municipal Council held on 05.11.2008, Smt.
Ambika Khanna was elected as President and Sh.
Balbir Singh Bittu was elected as Vice-President.
Ambika Khanna resigned from the post of President Municipal Council, Batala on 18.04.2012 and the same was duly accepted by the competent authority.
In the interregnum, the post of Vice-President Municipal Council, Batala also fell vacant by afflux of time, as the term thereof has come to an end.
Thus, the post of President as well as Vice-President of Municipal Council, Batala became vacant.
A meeting for election of President and Vice-President was fixed for 09.07.2012 but the same was postpone till further ordeRs.due to administrative reasons, vide communication dated 09.07.2012 (Annexure P-1).The meeting for administering oath to new member of Municipal Council and also for election of President as well as Vice-President, was fixed for 01.08.2012 vide communication dated 27.07.2012 (Annexure P-2) but this meeting was also subsequently postponed.
Thereafter, vide communication dated 08.08.2012 (Annexure P-3).meeting was fixed for administering oath to new member of Municipal Council and also for election of President as well as Vice-President, for 06.08.2012 at 11.00 A.M.in the office of Nagar Council, Batala.
Meeting was held, Civil Writ Petition No.16165 o”
3. wherein 22 Municipal Councilors including the local MLA from Batala were present.
Deliberations took place, proceedings conducted and petitioner was unanimously elected as President.
Quorum of the meeting was complete, members present in the meeting unanimously elected respondent No.7 as Convener of the meeting.
It is also pleaded on behalf of the petitioner that the proceedings of the meeting were also telecast live on local Fastway Cable Network Channel, Batala.
The proceedings were also recorded in CD and the local Press also reported the proceedings of the meeting vide Annexure P-6 whereas the photographs of members attending the proceeding are appended at Annexure P-5.
It is further alleged that after the proceedings had been concluded in the meeting held on 06.08.2012, impugned order 06.08.2012 (Annexure P-7) was passed by respondent No.5, on telephonic instructions allegedly received from respondent No.3, thereby again postponing the meeting till further ordeRs.Hence this writ petition.
Notice of motion was issued vide order dated 22.08.2012 passed by this Court and the same reads as under.
Refers to Section 28 of the Punjab Mu8nicipal Act, 1911 to contend that meeting could not be postponed, which was fixed and the members present could elect the Chairman to preside over the meeting and pass a resolution for which purpose the meeting was called.
Accordingly, contends that the cause to postpone the meeting, which was subsequently to the event in question, would be totally illegal, In support, relies on Ashok Kumar Gupta Versus State of Punjab, 2001 (4) R.C.R.(Civil) 223.
Civil Writ Petition No.16165 o”
4. Notice of motion for 6.11.2012.
Dasti as well.
Pursuing to the above said order, short affidavit dated 05.11.2012 of Vinot Kumar Bhalla, special Secretary, Local Government, Punjab was filed on behalf of respondents No.1 and 2 whereas reply by way of counter-affidavit dated 23.11.2012 of Baljit Singh, Additional Deputy Commissioner (G).Gurdaspur was filed on behalf of respondents No.3 and 4.
Separate written statement was filed on behalf of respondents No.5 and 6, by way of affidavit of Manjinder Singh Bandesha, Executive Officer, municipal Council, Batala.
Respondent No.7 filed his separate written statement.
Thereafter, petitioner filed his replication to the written statement filed by respondents No.3 and 4.
That is how, this Court is seized of the matter.
Learned counsel for the petitioner submits that impugned order was not only contrary to the facts of the case but also contrary to the relevant statutory provisions of law, as well as judgements of this Court.
He further submits that the material averments taken on behalf of the petitioner have not been denied by the respondents.
Referring to Sections 20, 24, 25, 26 and 27, besides, placing heavy reliance on Section 28 of The Punjab Municipal Act 1911 ('the Act' for short).learned counsel for the petitioner submits that the impugned order dated 06.08.2012 (Annexure P-7) was without jurisdiction.
The Quorum of the meeting was complete, the meeting was held strictly in accordance with law, wherein the petitioner was unanimously elected as President of the Municipal Council, Batala.
However, the Civil Writ Petition No.16165 o”
5. respondents-authorities proceeded on a misconceived and illegal approach while not notifying the claim of the petitioner, thereby illegally keeping an elected President out of his office because until his name was notified, petitioner was unable to work as President of the Municipal Council.
To substantive his arguments, learned counsel for the petitioner relies upon the judgement of the Hon'ble Supreme Court in State of Punjab versus Bhajan Singh 2001 (3) SCC 565.Division Bench judgments of this Court in Ashok Kumar Gupta versus State of Punjab 2002 PLJ 543.Ram Singh versus State of Punjab 1998(2) PLR 124.and Kala Ram versus The State of Punjab 1994 PLJ 723.and Single Bench judgements of this Court in Chandu Ram versus State of Punjab 1985 PLJ 492.and Vijay Kumar Sandoha versus State of Punjab and others 2012(1) RCR(Civil) 907.
Finally, he prays for setting aside the impugned order by allowing the instant writ petition.
Per contra, learned counsel for the State submits that in view of Rule 3 of the Punjab Municipal (President and Vice-President Elections Rules 1994) only the Deputy Commissioner or any other officer authorised by him in this behalf, was competent to convene the meeting.
Since the meeting on 06.08.2012 was not convened by the convener, the proceedings of the meeting were illegal and the election of the petitioner cannot be said to be valid one.
He further submits that since the election was not legal, he was not entitled to seek a writ of Mandamus for notifying his name as President of the Municipal Council.
He concluded by submitting that the writ petition was without any merit and same may be dismissed.
Civil Writ Petition No.16165 o”
6. Having heard the learned counsel for the parties at considerable length, after careful examination of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that present writ petition deserves to be allowed.
To say so, reasons are more than one, which are being recorded hereinafter.
The important question of law that falls for consideration of this Court is as to whether the meeting dated 06.08.2012 was held, in accordance with the provisions of Section 28 of the Act or it was held in violation the provisions of Rule 3 of the Election Rules, 1994.
Before proceeding further, it would be appropriate to refer to the relevant statutory provisions of law contained in Section 28 of the Act, as well as Rule 3 of the Election Rules, 1994 and the same read as under.”
28. Chairman of meeting.-- At every meeting of a committee the President, if present, or, in his absence of during the vacancy of office, [or during his suspension under Section 22, the Senior Vice-President present, and if there be no President or Vice-President present, or if they may be under suspension under Section 22]., then such one of their member [other than an associate member].as the members present may elect shall preside as chairman.”
3. Manner of election.[(1) The Deputy Commissioner or any other officer authorised by him in this behalf (hereinafter referred to as the Convener) shall, within a period of [fourteen].days of the publication of the notification of the election of members of a newly Civil Writ Petition No.16165 o”
7. constituted Municipality, fix, by giving not less than forty- eight hours notice to be served at the ordinary place of residence of all the elected membeRs.a date for convening the fiRs.meeting of the elected members of such Municipality by stating in the notice that at such meeting, the oath of allegiance will be administered to the members present and also stating that the President and Vice-Presidents as the case may, be shall be elected: [Provided that all subsequent meetings to fill casual vacancies of the offices of President and Vice- President of Vice-Presidents as the case may be, shall be convened by the Convener.].(2) If due to any reason, the elected member is unable or refused to take oath of allegiance as required by sub-rule (1) within the stipulated period, then he will be allowed to take such oath of allegiance in the subsequent meeting unless he is debarred from taking the same by the Government for any reason.
In case any such member does not take the oath of allegiance as aforesaid, then a fresh election to the constituency to which that member represents, shall be held.].Section 20, 24(2).25(3).27 and 28 came up for consideration of a Division Bench of this in Ashok Kumar Gupta's case (supra).The Division Bench considered the scope of times of holding meeting as provided in Section 25, quorum of the meeting as provided under Section 27 and also the scope of Section 28 as to who can preside over the meeting in the absence of President or the Vice-President.
After detailed deliberations on the subject, the Division Bench in Para 10, 11 and 12 of the judgement observed as under:- “In order to appreciate the rival claiMs.it is to be seen if the meeting held on 21.08.2000 in which the Civil Writ Petition No.16165 o”
8. petitioner claims to have been elected as President, was a valid meeting or not and whether he was duly elected as President.
Admittedly, a Division Bench of this Court, in its order, Annexure P-1, had directed that from the date of acceptance of the resignation of the then President Dharam Singh, the next President shall be elected within four weeks therefrom for which necessary meeting according to rules shall be called.
It has come on record that the resignation of Dharam Singh, not respondent No.5, was accepted on 7.7.2000 and an intimation in this respect was received by the Executive Officer on 11.7.2000.
He had informed the senior Vice President- respondent No.4 about the requirement of holding a meeting earlier to 7.8.2000 i.e.Within for weeks from the date of acceptance of resignation of the earlier President in accordance with the directions of this Court.
Admittedly, respondent No.4 did not take any step or care to call any such meeting and six of the Municipal Councillors submitted a letter dated 25.7.2000, Annexure P-2, requiring the Executing Officer to convene a meeting for holding the election of the President.
Section 25 of the Act provides for times of holding meetings by the Municipal Committee as under:- “25.
Times of holding Meeting- (1) Every Committee shall meet for the transaction of business at least once in every month at such time as may, from time to time, be fixed by the bye-laws.
(2) The President or, in the absence or during the vacancy of his office or during his suspension under Section 22 a Vice-President may, whenever he thinks fit and shall on a requisition specifying the purpose of the meeting made in writing by not less than one fifth of the members of the committee, convene either an ordinary or a special meeting at any other time.
(3) If the President or the Vice- President, as the case may be, fails to call a meeting of the committee within a period of fourteen days from the date of receipt of requisition, the members who had signed the requisition may convene a meeting of the committee in accordance with the by-laws of the committee within a period of thirty days of the making of such requisition and notwithstanding anything contained in this Act such meeting shall be deemed to be a validity convened meeting : Provided that no business other than that specified in the requisition shall be transacted Civil Writ Petition No.16165 o”
9. in such meeting and the quorum for such a meeting shall be as provided for a special meeting under sub-Section (1) of Section 27.”
On receipt of the requisition, no immediate action was taken by the Vice President so as to complete the election of the President within the stipulated period, rather the meeting was fixed by letter dated 7.8.2000 for 21.8.2000 at 3 pm in town Hall.
Since the requisition for holding election meeting was made on 25.7.2000, meeting could have been fixed earlier to 8.8.2000 to meet the dead line of holding election but instead it was only on 7.8.2000 by letter, Annexure P-3, that the Vice President-respondent No.4 convened a meeting for 21.8.2000.
The petitioner has placed on file, Annexure P- 4 wherein the Sub Divisional Magistrate, Ferozepur was apprised of the efforts of some of the opposite Councillors to stall the holding of election meeting of the President on 21.8.2000 and it was on 20.8.2000 i.e.a day earlier to the date fixed for the meeting, the Vice President cancelled the meeting by letter, Annexure P-5.
Intimation of cancellation of the meeting was given by the executive Officer to the CouncillORS.The reason for cancelling the meeting by letter.
Annexure P-5, of the Vice President was her sudden illness and the advice of doctor for her immediate check up at Delhi since she was diagnosed of heart trouble.
Whether the Vice President- respondent No.4 could postpone the election meeting having requisitioned a special meeting?.
In the circumstances, the answer obviously is in the negative.
The presence in the meeting of the President or the Vice President is not obligatory and there is no provision in the Act if a meeting of the Municipal Council can not be held in the absence of the President or the Vice President.
Section 28 of the Act provides as to who shall chair or preside over the meeting as follows:- “28.
Chairman of meeting- At every meeting of a committee the President, if present, or, in his absence or during the vacancy of office, or during the suspension under Section, or during his suspension under Section 22 the Senior Vice- President present, and if there be no President or Vice-President present, then such one of their members other than an associate member as the members may elect shall preside as Chairman”.A reading of Section 28, thus clarifies unmistakable that in the absence of the President, the Senior Vice President and in the absence of both, then one of the members present can be elected to preside over the meeting as Chairman.
In case Senior Vice Civil Writ Petition No.16165 o”
10. President, respondent No.4 had any reason to be not present, in the circumstances, she could not have cancelled the meeting since a valid meeting could have been held in her absence.
A meeting can be postponed only if the quorum of the meeting is not complete as provided in Section 27 of the Act as under:- “27.
Quorum- (1) The quorum necessary for the transaction of business at a special meeting of a committee shall be one-half of the number of the committee actually serving at the time, but shall not be less than three.
(2) The quorum necessary for the transaction of business at an ordinary meeting of a committee shall be such number or proportion of the members of the committee as may, from time to time, be fixed by the bye-laws, but shall not be less than three: Provided that, if at any ordinary or special meeting of a Committee a quorum is not present, the chairman shall adjourn the meeting to such other day as he may think fit, and the business which would have been brought before the original meeting if there had been a quorum present shall be brought before, and transacted at, the adjourned meeting, whether there be a quorum present thereat or not.”
Similarly another Division Bench of this Court in Ram Singh's case (supra) held as under:- “A copy of the resolution passed by the Nagar Panchayat on April 9, 1997 is on record as Annexure P-1.
A perusal of this resolution shows that the wireless message was received from the Deputy Commissioner “during the meeting”.The members had considered the matter and decided that there was no need to postpone the consideration of the matter.
Since the meeting had already commenced, the proceedings had continued and the resolution was passed.
Did the members act in violation of law?.
In Kala Ram' s case (supra) a Division Bench has categorically held that the District Magistrate has no power “under any provision in the Municipal Act to postpone the meeting of the members of the Municipal Committee”.We are in respectful agreement with the view expressed by the Bench.
Even otherwise the power Civil Writ Petition No.16165 o”
11. of the Deputy Commissioner to prohibit the doing of any act cannot take within its ambit the right of the members of the Committee to meet and decide.
Still further, the resolution having been passed in April 1997, the Deputy Commissioner never invoked his power under Section 232 to suspend the resolution.
In fact, the Government proceeded to act under Section 22 which was in conformity with law.
Taking the sequence of events into consideration, we are unable to hold that the action of the Committee in conducting the proceedings on April 9, 1997 was in violation of any valid order under Section 232 of the Act.
The Deputy Commissioner had no jurisdiction to postpone the meeting.
His directions were not within the ambit of the aforesaid provision.”
Again, an identical issue came up for consideration before this Court in Chandu Ram's case (supra) and it was held as under “Section 20 of the Act confers a power upon the members of the Municipal Committee to elect a President within one month of the occurrence of a vacancy for the office of the President.
A meeting of the Committee was called by the Executive Officer to elect a President on August 26, 1981.
An agenda for this purpose had been issued to the members by him, 14 out of the 16 members attended the meeting.
This indicates that a proper notice of the meeting had been given to the membeRs.The respondents have not averred in the written statement that Ram Kishan or Bant Singh were not served with the notice and agenda or the notice of the meeting was less than 48 houRs.Even in the letter of the Sub-Divisional Officer (Civil) addressed to the Executing Officer, respondent No.4, reasons for adjournment of the meeting have not been given.
It is not stated that rule 47 of the Rules was not complied with while summoning the meeting.
In his return, the Executing Officer, respondent No.4, has not averred that while fixing the meeting rule 47 of the Rules had not been complied with or the notice given to the members was short.
He has only stated that the meeting was fixed by the Acting President and he had issued the agenda in compliance with his ordeRs.Rule 47 of the rules read as under:- 47.
Election of President or Vice-President.
- (1) No election of a President or Vice-President of a committee shall be held at a meeting unless not less than forty-eight houRs.Civil Writ Petition No.16165 o”
12. notice of the holding of such meeting has been given to all members of the committee by delivery at their ordinary place of residence of a notice, which shall specify that such election is to take place at the meeting in question.
The Person or persons elected shall, subject in the case of the election of a President, to the provisions of sub-section (1) of Section 20 of the Act, assume office from the date of election.
Since in the written statement of the respondents, the clear and specific averments were not made as to in what manner rule 47 of the Rules had not been complied with, I had asked for the relevant records.
The same were produced before me.
A perusal of these papers revealed that the notice and agenda of the meeting to elect the President had been issued by the Executive Officer on August 20, 1981.
Rule 47 of the Rules only requires 48 houRs.notice.
In the present case, there is a notice of full five days.
So, there was in fact no non-compliance with rule 47 of the Rules.
Respondents have not even produced the orders passed by the Government.
They have not disclosed on what basis this conclusion was arrived at.
The orders of the Government postponing the meeting were based on no material or evidence and are liable to be quashed on this score along.
The Act and the rules provide a complete Code for determination of disputes regarding elections of the members of the Municipal Committee or its President and Vice-President.
Rule 52 of the Rules provides in clear terms that no election shall be called in question except by an election petition presented in accordance with these Rules.
Rule 6.3 of the Rules furnishes the grounds for declaring the election void.
A commission appointed by the Court for this purpose under rule 59 of the Rules could have gone into the allegations and if it holds that there has been any material irregularity then the commission may report that the election of such candidate should not be deemed to be valid.
Under rule 51 of the Rules, material irregularity has been defined to include the non-compliance with the provisions of the Act or the Rules made thereunder.
So even if for the sake of arguments, it may be accepted that there had been any non-compliance with the Rules, the proper remedy was by way of an election petition.
The State Government under Section 20 of the Act has the power to approve or disapprove the election of the persons.
Similarly, it has power under rule 68 of the Civil Writ Petition No.16165 o”
13. Rules to order an inquiry to be held in the conduct of any election if there is reason to suspect that any irregularity had been committed in the conduct of the election.
There is, however, no power with the State Government to adjourn a meeting called for the election of a President.
In any case, the learned counsel for the respondents have not been able to bring to my notice any express provision in the Act or the Rules empowering the State Government to postpone an election meeting.
Once the process of election has been set in motion, it should be allowed to complete its course.
It is all the more important in the context of Section 20 of the Act.
It provides that if the members of the Municipal Committee fail to elect a President within one month of the occurrence of the vacancy in the office, the State Government may appoint any one of the members to be the President.
By postponing an election meeting, the State Government can deprive the members of the committee to elect a President.”
Reverting back to the facts of the present case, a combined reading of Annexure P-1, P-2 and P-3 would show that every time the meeting was being postponed in clear violation of the relevant provisions of law.
Further the meeting used to be postponed on telephonic instructions.
Having said that, this Court feels no hesitation to conclude that the respondent-authorities were proceeding ignoring all the norMs.violating statuary provisions and showing scant respect to the principles of law, for the reasons best known to them.
In the given fact situation of the present case, members of the respondent-Municipal Council were entitled to convene a meeting, elect one of the members amongst them to preside over the meeting as Chairman, for the purpose of electing the Present and Vice-President.
The members of the Municipal Council were authorised to held such a meeting deriving their authority from Section 28 of the Act as interpreted by a Division Bench of this Court Civil Writ Petition No.16165 o”
14. in Ashok Kumar Gupta's case (supra).In this view of the matter, it is unhesitatingly held that the meeting dated 06.08.2012 was held in accordance with the provisions of Section 28 of the Act.
It is further held that no provision of law including contained in Rule 3 of the Election Rules 1994, was violated by the members of the respondent- Municipal Council, while holding the meeting for the election of President and Vice-President.
The question posed above is answered, accordingly.
On the second issue, for issuing a writ of mandamus, Hon'ble Supreme Court in almost identical situation, in the case of Bhajan Singh's (supra).held as under:- “It is not disputed that despite the election of respondent No.1 as President on 6.4.1998, a notification in terms of sub-Section (2) of Section 24 of the Act was not issued forcing the respondent No.1 to file Writ Petition No.7105 of 1998 in the High Court on 15.5.1998.
We do not agree with the argument of Mr.Dutta that the State Government or the said Secretary had an unbridled power or option to notify or not to notify the election of the President in the Official Gazette.
Such an argument will not only contrary to the concept of democracy and the rule of law but in fact flagrant violation of the mandate of the Act as incorporated in Sub-Section (2) of Section 24 of the Act.
A duty is cast upon the Government to notify in the Official Gazette every election of President of Municipality as is evidence from the words 'shall notify in the Official Gazette”.
used in the sub-section.
The State Government has the authority to refuse to notify the election of a President, or any person who has incurred a disqualification under the Act or under any other law for the time being in force, subsequent to his election as Member of the Municipality provided that before refusing to notify the elections the State Government gives as opportunity of being heard to the concerned person.
Admittedly, the State Government has failed to notify the election of the President in the Official Gazette without assigning any reason, much less “giving an opportunity”.
to the respondent No.1 The omission and inaction of the Civil Writ Petition No.16165 o”
15. said Secretary cannot be made a basis for frustrating the provisions of law and thereby nullifying the peoples' verdict returned in an election conducted in accordance with the provisions of law applicable in the case.
Even if the respondent No.1 had allegedly incurred some disqualification, the State Government was obliged to inform him that his election as President of the Municipality could not be notified for the aforesaid reason.
In the absence of such intimation, the omission to notify cannot be justified on such ground.”
Respectfully following the law laid down by the Hon'ble Supreme Court, it is held that respondent No.1 was duty bound to notify the name of the petitioner as President of the respondent- Municipal Council, in view of his election which was held, in accordance with law.
Inaction on the part of respondent No.1, in this regard, cannot be sustained.
Further, during the couRs.of hearing, learned counsel for the State could not substantiate his arguments, while supporting the impugned ordeRs.The factual aspect of the matter, as pleaded by the petitioner, has not been denied by the respondents.
Quorum of the meeting was not denied.
Similarly, proceedings which took place in the meeting, were also not denied.
However, it seems that only object of the respondent-authorities was to keep, a duly elected person, out of his office while not notifying his name, in accordance with law.
No reason is forthcoming on behalf of respondent authorities to justify their action, much less cogent reasons thereof.
Thus, the impugned action was an action without jurisdiction.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Civil Writ Petition No.16165 o”
16. Court is of the considered view that the impugned notice dated 06.08.2012 (Annexure P-7) cannot be sustained and the same is hereby ordered to be set aside.
Subsequently, a writ of mandamus is issued directing respondent No.1 to notify forthwith, the name of the petitioner as President of the Municipal Council, Batala.
Resultantly, the instant writ petition stands allowed.
However, no order as to costs.
(RAMESHWAR SINGH MALIK) 01.04.2013 JUDGE Nitin