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Gurtejinder Singh Gill Vs. State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 3307 of 1984
Judge
Reported inAIR1985P& H34
ActsPunjab Municipal Act, 1911 - Sections 13(2), 20 and 21(2); Gujarat Municipalities Act, 1963 - Sections 32(3) and 33(1); Karnataka Municipalities Act, 1964 - Sections 42
AppellantGurtejinder Singh Gill
RespondentState of Punjab and anr.
Cases Referred and Ashok Kumar Mittal v. State of Punjab
Excerpt:
.....that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against..........is the total period of the office of the president of a given municipal committee and this five years term of office as president is not for a given incumbent of that office. learned counsel cited nandlal khodidas barot v. v. b. buch, air 1974 guj 45: c. r. shivanandan v. election officer and head quarters assistant to the deputy commr., district office, chickmagalur, air 1976 kant 225: and ashok kumar mittal v. state of punjab, (1982) 84 pun lr 664.7. the ration of none of the aforesaid decisions is attracted to the facts of the present case. in nandlal khodidas barot's case (supra), the question before the gujarat high court was as to whether the municipal board could reduce the term of the president once determined under section 33(1) read with section 32(3) of the gujarat.....
Judgment:

D.S. Tewatia, J.

1. The petitioner, an elected member of the Municipal Committee, Faridkot, who along with other members, took oath of the office on 13-7-1979 and thus entered upon his office, has sought a mandatory direction against the State Government and the Executive Officer of the Municipal Committee, respondents 1 and 2 respectively, to hold fresh election of the president of the said municipal committee in compliance with the executive instructions issued by the Directorate, Local Government, Punjab (Municipal Election Office), Chandigarh, to all the Executive Officers of the Municipal Committees in the Punjab, except Municipal Committees, Phagwara, Rajpura, Bhadaur, Jaitu, Malout, Kapurthala and Dasuya, vide Memo No. MEO-84/EA/6047-6137, dated 26-7-1984, directing them to hold de novo election to the offices of the President and Vice-President who were to complete their terms of office of five years prior to 31-12-1984, the date to which the term of the elected members of all the municipal committees except Municipal Committees, Phagwara, Rajpura, Bhadaur, Jaitu, Malout, Kapurthala and Dasuya, had been extended, vide notification No. 13(2) (LG-UI-84/18921, dated 27-6-1984, published in the Punjab Government Gazette Extraordinary dated 27-6-1984.

2. It is alleged that the petitioner, was elected as President for the said Municipal Committee, according to rules, on 31-7-1979; that he continued as such up to 24-2-1981; that thereafter Shri Jarnail Singh Sekhon was elected as President of the said Municipal Committee, who remained President for about a year and then Shri Kharaiti Ram, a member of the said Municipal Committee, was elected as President on 22-9-1982 ; that he submitted, his resignation on 5-4-1984; and that, later on, he alleged that he never resigned and the Government allowed him to continue as the President of the Municipal Committee. The case set up by the petitioner further is that the term of the office of the President of the Municipal Committee being five years, which came to an end on 31-7-1984, the State Government was therefore, duty-bound, in view of its own directions, to have the President of the Municipal Committee elected afresh through the Executive Officer in accordance with law.

3. The stand taken on behalf of the respondent State and the Executive Officer is that the term of the members of the municipal committee having been extended up to 31-12-1984 and by virtue of sub-section (2) of Section 21 of the Punjab Municipal Act, 1911, hereinafter referred to as the Act, the term of the office of the President being five years or the remaining period of membership of the municipal committee, whichever is less, and since period of membership of the members having been extended up to 31-12-1984, the present incumbent Shri Kharaiti Ram, who was elected President only on 22-9-1982, is entitled to continue as such up to 31-7-1984--the residuary period of his membership being less than the unexpired period of 5 year term of the presidency of the present incumbent of that office.

4. Notification extending the term of the office of the elected members of the Municipal Committee is in the following terms:

Notification

The 27th June, 1984

No. 13(2) (LG-UI-84.18921).--Whereas the conditions in the State of Punjab are so disturbed that it is not practicable for the State Government to hold and complete elections in terms of sub-section (2) of section 13 of the Punjab Municipal Act, 1911 (Punjab Act No. 3 of 1911) to the Committees in the State before the expiry of the term of office of their elected members:

Now, therefore, in exercise of the powers conferred by clause (I) of the proviso to sub-section (2) of the said section 13 of the aforesaid Act, the President of India is pleased to extend the term of office of the elected members of all the Committees in the State excepting the committees of Phagwara, Rajpura, Bhadaur, Jaitu, Malout, Kapurthala and Dasuya up to the 31st day of December, 1984.'

The direction issued by the Directorate, Local Government, Punjab, in the wake of the aforesaid notification, reads as under:

'Subject: Regarding extension of term to 31-12-1984 of members of all the Municipal Committees in the State.

________

With reference to endorsement No. 13(2) LG-UI -84, dated 27-6-1984 issued by the Government on the abovenoted subject.

2. The term of elected members of all the Municipal Committees in the State (except Municipal Committees of Phagwara, Rajpura, Bhadaur, Malout, Jaitu, Kapurthala and Dasuya) has been extended up to 31-12-1984 by the Government, vide letter under reference. The term of office of the President of the Municipal Committee is fixed for five years under section 21(2) of the Punjab Municipal Act, 1911. According to these provisions in case the term of 5 years of the office of President is completed prior to 31-12-1984, the election to the post of President will naturally be held de novo. Similarly, the election to the office of Vice-President is to be held according to section 21(3) of the aforesaid Act in case the prescribed term as laid down in the Bye-laws of the Municiapl Committee concerned expires prior to 31-112-1984.

3. It is requested that necessary action may be taken as per the aforementioned position.

4. The receipt of this memorandum may be acknowledged'.

By virtue of the provision of section 20 of the Act, a member of the Municipal Committee is elected as President and sub-section (2) of section 13 of the said Act provides that the term of office of the elected members shall be 5 years. Sub-section (2) of section 21 of the Act, which provides for the term of office of a President, is in the following terms:

'21(2) The term of office of a president elected or appointed by name or elected by virtue of his office shall be five years or the residue of his term of office as member, whichever is less'.

The term of the office of the elected members of the municipal committee, which sub-section (2) of section 13 of the Act envisages to be five years, stood extended up to 31-12-1984 by virtue of notification dated 27-6-1984, even if their five year term expired or was to expire before the date.

5. Even a plain reading of sub-section (2) of section 21 of the Act would show that if a President is elected on the day on which he is elected as a member, then his term of office would not go beyond five years, even if his term as member stands extended by any period, because sub-section (2) of section 21 of the Act provides that he shall remain president for five years or for the residue of his term as member of the municipal committee, whichever is less. If the term of his membership is extended from five years to 6 years, his presidential term would come to an end on the expiry of five years, because out of the two periods indicated in the aforesaid provision, the period which is less has to be taken to be fixed by the said provision to be the term for the office of the President.

6. However, on behalf of the petitioner it is canvassed that the term of five years envisaged in sub-section (2) of section 21 of the Act is for the office of the President, that is, the same is the total period of the office of the President of a given municipal committee and this five years term of office as President is not for a given incumbent of that office. Learned counsel cited Nandlal Khodidas Barot v. V. B. Buch, Air 1974 Guj 45: C. R. Shivanandan v. Election Officer and Head Quarters Assistant to the Deputy Commr., District Office, Chickmagalur, AIR 1976 Kant 225: and Ashok Kumar Mittal v. State of Punjab, (1982) 84 Pun LR 664.

7. The ration of none of the aforesaid decisions is attracted to the facts of the present case. In Nandlal Khodidas Barot's case (supra), the question before the Gujarat High Court was as to whether the Municipal Board could reduce the term of the President once determined under section 33(1) read with section 32(3) of the Gujarat Municipalities Act, 1963, which provisions are in the following terms:

'33(1). Save as otherwise provided in this Act, a president or vice-president shall hold his office for such term as the municipality shall, previous to his election, determined, not being less than two years of the residue of the term of office of the municipality, whichever be less, and not exceeding five years, and he shall be eligible for re-election;

Provided that the term of office of such president or vice-president shall be deemed to extend to and expire with the date on which his successor is elected'.

Sub-section (3) of section 32 of the Gujarat Municipalities Act, 1963, in terms, laid down that no business other than the determination of the term of office of the president and view-president and the election of the president and vice-president shall be transacted at such meeting.

8. The Gujarat High Court held that the Municipal Board had no power to curtail the term of the President once fixed under section 33(1) except by passing a no-confidence motion. The only power specifically conferred upon the general Board to remove a President even before the term of the office determined under section 33(1) was by passing a motion of no-confidence and that too by the requisite majority prescribed in section 36. Thus, it would be apparent that not only the question posed before the Gujarat High Court, but also the relevant provisions bearing upon that question were entirely different.

9. In C. R. Shivananda's case (AIR 1976 Kant 225) (supra), the facts were that one H. r. Keshavamurthy was elected as President of the Town Municipal Council, Chickmagalur. His term of office was one year. Before the expiry of the period, he resigned. In the vacancy caused thereby the petitioner in that case was elected as President. After the expiry of one year from the date on which the petitioner's predecessor was elected to the office of the President, the Election Officer wanted to hold fresh election stating that the petition had no right to remain in the office beyond the term of Mr. Keshavamurhty. The petitioner challenged the validity of the proposed election in the Karnataka High court. The two relevant provisions that came up for consideration were section 42 clauses (11) and (12) of the Karnataka Municipalities Act, 1964, which are in the following terms:

'42(11). The term of office of every President and of every Vice-President shall, save as provided in this Act, cease on the expiry of the term of office as councillor; provided that the Government may, with the consent of the municipal council concerned, direct that their term be limited to one year and that elections therefore be hled every year.

(12) In the event of the non-acceptance of office, death, resignation or removal from office of a President or Vice-President or of his election being held void, or his becoming incapable of acting in such office or having ceased to be a councillor, previous to the expiry of his term of office as President or Vice-President, the vacancy shall be filled up by appointment or election, as the case may be, in accordance with the provisions of the foregoing sub-sections. When any vacancy not otherwise provided for occurs the Government may appoint any person to perform all the duties and exercise all the powers of a President or Vice-President during such vacancy'.

The Karnataka High Court held that the petitioner in that case was entitled to continue as president only for the unexpired term of his predecessor, as the total term of a president could not exceed one year and the petitioner was not entitled to remain president for full term of one year. The aforesaid provisions of the Karnataka Act are entirely different and are not in pari materia with the relevant provisions of the Punjab Act.

10. In Ashok Kumar Mittal's case (1982 (84) Pun LR 664) (supra), the question that cropped up for consideration was as to form which point of time the period of the elected members began. In that case it was held that the term of their office began from the date on which they entered upon office. They did not do so on the date on which oath was administered to them. The ratio, again, of this decision is not relevant to the facts of the present case.

11. For the reasons aforementioned, we find no merit in this petition and dismiss the same in limine.

Surinder Singh, J.

12. I agree.

13. Petition dismissed


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