Himachal Pradesh High Court
Madhu Sharma & Anr vs State Of Himachal Pradesh & Ors on 17 August, 2018
Author: Chander Bhusan Barowalia
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
1
HO'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
LPA No.23 of 2018
Reserved on: 26.07.2018
.
Decided on: August 17, 2018
Madhu Sharma & Anr. ......Appellants
Versus
State of Himachal Pradesh & Ors. .......Respondents
____________________________________________________
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, J.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, J.
Whether approved for reporting?1 Yes.
For the appellants : Mr. Ajay Sharma, Advocate.
For respondents : Mr. Vinod Thakur and Mr. Sudhir No.1 to 4 Bhatnagar, Additional Advocates General, with Mr. J.S. Guleria and Mr. Bhupinder Thakur, Dy. Advocate Generals.
For respondent : Mr. Sunil Mohan Goel, Advocate. No.5.
For respondent : Mr. Nimish Gupta, Advocate. No.7/Caveator None for remaining respondents.
___________________________________________ 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 2Chander Bhusan Barowalia, J.
The present letter patent appeal is maintained by .
the appellants-petitioners against the judgment passed by learned Single Judge, in applications CMPs No.3917 and 3918 of 2018 in a case CWP No.1831 of 2017, titled Madhu Sharma & Another versus State of Himachal Pradesh & Others. The applicants in the said applications have been added as party respondents in the writ r to petition and interim order which was in favour of the appellants-
petitioners/Non-applicants, has been vacated.
2. Briefly stating the facts, which have come on the record by way of the pleadings of the parties in the present letter patent appeal, are that respondent No.5 Shri Amit Kumar in the present letter patent appeal, as per the appellants-petitioners, while filing his nomination papers for contesting election as Ward Member of Nagar Panchayat, Baijnath, concealed vital information and the Returning Officer could not reject his nomination papers, as such, he got elected as Member of the respondent No.6 by concealing material information. He has not disclosed that he has ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 3 been charged by the Criminal Court for the offence and simply stated that the criminal case is pending against him.
3. It is further alleged that respondent No.5 cannot .
otherwise also continue as a Member of Nagar Panchayat and his election is required to be set aside and that he is required to be suspended by respondents No.1 to 4, meaning thereby that as he cannot be considered as a Member, so no confidence motion moved by him alongwith other Members of respondent No.6, required to be quashed. With this prayer, the writ petition was maintained and an application was also maintained to stay the proceedings in no confidence motion. While interim order was operating, two applications were moved by respondents No.7 to 13 for vacation of the stay and adding them as parties, which learned Single Judge had allowed and the interim order was vacated.
4. Learned counsel for the appellants-petitioners, has argued that learned Single Judge has no jurisdiction to set aside the interim order passed after adding respondents No.7 to 13 as party, as they are not necessary parties and only question required to ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 4 be adjudicated was with respect to the continuation of respondent No.5 as Member of Nagar Panchayat, Baijnath. He has further argued that the application required to be dismissed. To support .
his arguments, he has relied upon the proforma required to be filled in at the time of filing of nomination papers and has stated that the information given by respondent No.5 at the time of submitting his proforma with regard to the pendency of the case, is wrong as he has not mentioned in the relevant column that the charge against him has been framed. He has further argued that under Section 272 read with Section 8 of the Representation of People Act, respondents No.1 to 4 should have suspended respondent No.5 immediately as the charge was framed against him.
5. On the other hand, learned Additional Advocate General, has argued that the information, as submitted by respondent No.5, was as per rules prescribed and there was no concealment of material fact. He has further argued that it is for respondents No.1 to 4 to consider whether for the offence for which respondent No.5 was charged, was sufficient to call for his ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 5 suspension or not and as respondents No.1 to 4 have come to the conclusion that the offence was not sufficient to call for his suspension, hence, he was not suspended and further he needs .
not to be suspended.
6. On the other hand, learned counsel appearing for respondent No.5, in addition to what has been argued by learned Additional Advocate General, has argued that the writ petition is barred on account of delay and latches and even when respondent No.5 was supporting the petitioner. He has further argued that no fault was found by the appellants-petitioners against the eligibility of respondent No.5 for one and half years and only when no confidence motion was moved, the present appeal is maintained and earlier thereto appellant/petitioner No.1 had made a false complaint against respondent No.5 through her brother-in-law.
7. On the other hand, Mr. Nimish Gupta, leaned counsel appearing for respondents No.7, has argued that the appellants-petitioners have no case in their favour as seven Members out of eleven, i.e. respondents No.7 to 13, excluding respondent No.5, have moved no confidence motion against the ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 6 appellants-petitioners and to uphold the democratic process and the will of the people, the interim order was rightly vacated after adding them party.
.
8. In rebuttal, learned counsel for the appellants-
petitioners, has argued that the suspension was automatic and as respondents No.1 to 4 have failed to discharge their legal obligation, the interim order was not required to be vacated.
9. We have gone through the entire record. At the very outset, the information which was supplied by respondent No.5 at the time of filing of the nomination papers, is reproduced verbatim:-
"b. Section of the Act and description of the offence of which cognizance taken: 420, 466, 467, 468, 471, 120B IPC.
c. The Court which has taken cognizance: JMIC Baijnath.
d. Date of order of the Court taking cognizance:
Not decided, is under consideration."
10. It is crystal clear that respondent No.5 had mentioned the Section of the Indian Penal Code under which the cognizance was taken by the Court below and so the argument of learned counsel for the appellants-petitioners that respondent ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 7 No.5 has not stated that he had been charged, is un-founded and cannot be accepted to this extent that respondent No.5 has concealed the material fact as he had already given the .
information as required and had clearly stated that the Court below has taken cognizance against him, which information was required to be submitted. In the case, referred to the Sections of the Indian Penal Code, he further stated that case is pending in the Court of learned Judicial Magistrate, 1st Class, Baijnath, Distt.
Kangra (H.P.). Therefore, we find that the arguments addressed by learned counsel for the appellants-petitioners, devoid of any merits.
11. Now, coming to the second question that whether under Section 272 of the H.P. Municipal Act, the suspension was automatic or not when the charge is framed. To appreciate the arguments addressed by learned counsel for the appellants-
petitioners, we have gone through the provision of Section 272 of the H.P. Municipal Act, which is reproduced as under:-
"272. Suspension of office bearers of municipalities. -
(1) The prescribed authority may suspend from office any office bearer.::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 8
(a) against whom charges have been framed in any criminal proceeding under Chapters V-A, VI, IX-A, X, XII, sections 302, 303, 304-B, 305, 306, 312 to 318, 336-A, 336-B, 373 to 377 of Chapter XVI, sections 395 to 398, 408, 409, 458 to 460 .
of Chapter XVII and Chapter XVIII of the Indian Penal Code, 1860 (45 of 1860) or under any law for the time being in force for prevention of adulteration of food stuff and drugs, suppression of immoral traffic in women and children and protection of civil rights; or
(b) who has been served with a notice alongwith a charge sheet to show cause under this Act for his removal from the office.
(2) Where the inspection or an audit report discloses the mis-appropriation, mis-utilization or embezzlement of municipal funds by an office bearer of a municipality and the prescribed authority is satisfied that continuance in office of such a person will prejudice the enquiry under section 273 and apprehends tempering with record and witnesses may suspend such a person and in case he is in possession of any record, money or any property of the municipality, order him to hand-over such records, money or property to the Executive Officer/ Secretary of the municipality.
(3) The order of suspension under sub-section (1) or (2) shall be reported to the State Government within a period of ten days and shall be subject to such orders as the State Government may deem fit to pass. If the order of suspension is not confirmed by the State Government within ninety days from the date of receipt of such report it shall be deemed to have been revoked. (4) In the event of both the President and Vice-
President of a municipality being suspended under sub-section (1) or sub-section (2), the ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 9 municipality shall nominate one of the elected members of the municipality who is the senior most in age, to hold the office of President or Vice-President as the case may be, and such shall perform all the duties and exercise all the .
powers of President or Vice-President, as the case may be, during the period for which suspension continues.
(5) A person who has been suspended under sub-
section (1) or sub-section (2) shall also forthwith stand suspended from the office of member or office bearer of any other municipality or standing committee or District Planning Committee or any other Committee of which he is a member or office bearer. Such person shall also be disqualified for being elected, under the Act during his suspension."
12. Now, the word used as may suspend, the may does not mean shall, when the discretion is given to the respondents No.1 to 4 to suspend or not, we do not find that without there being anything on record showing that the discretion by them is exercised arbitrarily and capriciously, this Court is required to question the discretion to go into the process of decision making concluding not to suspend respondent No.5 by respondents No.1 to 4.
::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 1013. In the similar circumstances, Hon'ble Supreme Court, in case titled State of H.P. and Others versus Surinder Singh Banolta, (2006) 12 SCC 484, has held as under:-
.
"1.xxxxxx
2.xxxxxx
3.xxxxxx
4. The State of Himachal Pradesh pursuant to the constitutional mandate as noticed hereinbefore enacted the Himachal Pradesh Panchayati Raj Act, 1994 (for short "the Act"). Chapter IX of the Act lays down general provisions relating to incorporation, duration, territorial constituencies of Panchayat and qualifications, etc. of office-bearers. Section 122 of the Act provides for disqualifications, the relevant provisions whereof read as under:
"122(1) A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat
(a) if he is so disqualified by or under any law for the time being in force for the purposes of the election to the State Legislature:
Provided that no person shall be disqualified on the ground that he is less than 25 years, if he has attained the age of 21 years;
(b) * * *
(c) if he has encroached upon any land belonging to, or taken on lease or requisitioned by or on behalf of, the State Government, a Municipality, a Panchayat or a Co-operative Society unless a period of six years has elapsed since the date on which he is ejected therefrom or he ceases to be the encroacher; or * * * (2) The question whether a person is or has ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 11 become subject to any of the disqualifications under sub-section (1), shall after giving an opportunity to the person concerned of being heard, be decided-
(i) if such question arises during the process of an election, by an officer as may be authorized in this .
behalf by the State Government, in consultation with the State Election Commission; and
(ii) if such question arises after the election process is over, by the Deputy Commissioner."
5. Chapter IX deals with the officers and staff of Panchayats. Clause (f) of Section 159 defines "election" to mean an election to fill an office under the provisions of the Act. Section 162 of the Act, in tune with the provisions of Article 243-O of the Constitution of India provides that no election under the Act will be called in question except by an election petition presented in accordance with the provisions of Chapter XI.
6. Sections 163 of the Act reads as under:
"163(1) Any elector of a Panchayat may, on furnishing, the prescribed security in the prescribed manner, present within thirty days of the publication of the result, on one or more of the grounds specified in sub-section (1) of section 175, to the authorized officer an election petition in writing against the election of any person under this Act.
(2) The election petition shall be deemed to have been presented to the authorized officer
(a) when it is delivered to him-
(i) by the person making the petition; or
(ii) by a person authorized in writing in this behalf by the person making petition; or ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 12
(b) when it is sent by registered post and is delivered to the authorized officer or any other person empowered to receive it."
7. Section 174 of the Act provides for jurisdiction of the court to pass order in the .
manner laid down therein after inquiring into the election petition by the authorized officer.
8. Section 175 of the Act provides for the grounds upon which an election petition can be dismissed or an election can be set aside.
9. Respondent herein was elected as a member of Zilla Parishad. The result of election was declared on 5.01.2001. An application was filed by Respondent No. 2 Daulat Ram before the Deputy Commissioner, Shimla District, alleging that as he, having been declared an encroacher within the meaning of the provisions of Sections 4 and 7 of the Himachal Pradesh Public Premises (Rent Recovery and Land Eviction) Act, 1971 was disqualified to hold the elected post and, thus, should not be allowed to continue therein. The Deputy Commissioner took cognizance of the said complaint and by reason of an order dated 4.06.2002 declared Respondent No. 1 as disqualified for being chosen as a member of the Zilla Parishad and consequently his election was set aside.
10. It is not in dispute that a proceeding under the Himachal Pradesh Land Revenue Act was initiated against Respondent No.1. He was held to be unauthorized occupant of a land measuring 13 biswas in terms of the provisions of the Himachal Pradesh Public Premises (Rent Recovery and Land Eviction) Act by the Collector, Sub-Division, Theog. The said order was confirmed by the Financial Commissioner of the ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 13 Shimla Division by an order dated 6.08.1998. We will proceed on the basis that the said order has attained finality although there appears to be some dispute in relation thereto.
11. Respondent No. 1 was declared to be .
an encroacher in the year 1998. He was directed to be ejected from the land in question. The notification for election of Zilla Parishad by the State Election Commission under the Act was issued on 16.11.2000. As noticed hereinbefore, Respondent No. 1 was declared elected on 5.01.2001. In terms of the provisions of Article 243-O read with Section 163 of the Act, an election petition, therefore, was maintainable for setting aside his election.
12. Disqualification as provided for under Article 243-F has been laid down in Section 122 of the Act. Section 175 of the Act provides for disqualification as one of the grounds upon which an election petition could be filed. Interpreting the aforementioned provisions, a Division Bench of the Himachal Pradesh High Court opined that the order dated 27.06.2002 passed by the Deputy Commissioner is not sustainable in law.
13. Mr. J.S. Attri, learned AAG appearing on behalf of the appellants would submit that although the provisions of Section 163 are ordinarily required to be taken recourse to but having regard to the fact that in terms of Sub- section (2) of Section 122 of the Act, the question as regards declaring a candidate as disqualified may arise not only before an election is held but also after the election process is over, and thus, whereas in the former case, it will be the Authorised Officer concerned who can determine the question of disqualification but in ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 14 a case where processes are initiated after the election, the Deputy Commissioner alone would be the prescribed authority.
14. Section 163 of the Act provides for filing of an election petition on one or more .
grounds specified in Sub-section (1) of Section 175 thereof. Clause (a) of Sub-section (1) of Section 175 of the Act inter alia lays down a ground for setting aside of an election if on the date of the election the elected person was not qualified or disqualified to be elected under the Act.
15. It is no doubt true that Section 122 contemplates both the situations, viz., where a person shall be disqualified for being chosen as also for being an office bearer of Panchayat inter alia if he has encroached upon any land belonging to any authority mentioned therein. In view of the language of the said provision, we are of the view that whereas an issue falling under clause (1) of Sub-section (2) of Section 122 of the Act must be determined before the Authorised Officer, any order of encroachment passed after the election process is over would be determined by the Deputy Commissioner.
16. The provisions of the Act, as noticed hereinbefore, have been enacted pursuant to or in furtherance of the constitutional mandate contained in Part IX of the Constitution of India.
The provisions of the Act, therefore, are required to be construed strictly in terms thereof. Clause
(b) of Article 243-O of the Constitution of India mandates that no election shall be set aside save and except by an order passed by the Authorised Officer. In our considered opinion, Section 122 of the Act must be read in the light thereof. Section 162 of the Act expressly provides for the ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 15 exclusive jurisdiction of the Authorised Officer to determine the existence or otherwise of any ground enumerated in Section 175 of the Act.
17. Once, thus, a person is declared to be an encroacher prior to the date on which he has .
been declared as elector and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position.
18. If a candidate or a voter had the knowledge that the elected candidate was disqualified in terms of Section 122 of the Act, he may file an application. The order of eviction may come to the notice of some other person after the election process is over. A situation, thus, may arise where two different proceedings may lie before two different authorities at the instance of two different persons. Two parallel proceedings, it is well settled, cannot be allowed to continue at the same time. A construction of a statute which may lead to such a situation, therefore, must be avoided. It will also lead to an absurdity if two different Tribunals are allowed to come to contradictory decisions.
19. Furthermore, it is a well-known principle of law that where literal interpretation shall give rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598 and M.P. Gopalakrishnan Nair v. State of Kerala,(2005) 11 SCC 45] It is also a well-settled principle of law that in a case where a statute is found to be obscure the same must be interpreted having regard to the constitutional scheme. In a case of ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 16 this nature, the doctrine of purposive construction should be applied. [See Bombay Dyeing & Mfg. Co. Ltd.(3) v. Bombay Environmental Action Group & Ors. (2006) 3 SCC 434, Nathi Devi v. Radha Devi Gupta (2005) 2 .
SCC 271, Lalit Mohan Pandey v. Pooran Singh & Ors. (2004) 6 SCC 626, Indian Handicrafts Emporium & Ors. v. Union of India & Ors. (2003) 7 SCC 589 and Balram Kumawat v. Union of India & Ors. (2003) 7 SCC 628].
21. It is also well-settled that the entire statute must be read as a whole. The relevant provisions of the Constitution as also those in the statute must, thus, be read harmoniously. [See Bombay Dyeing (supra) and Secretary, Department of Excise & Commercial Taxes and Others v. Sun Bright Marketing (P) Ltd., Chhattisgarh and Another [(2004) 3 SCC 185] So read, we are of the opinion that the Division Bench of the High Court was correct in its view. The matter might have been different if Respondent No.1 was declared to be an encroacher after the election process was over and, thus, becoming disqualified to continue to be an office bearer of Panchayat or Zilla Parishad.
22. For the reasons aforementioned, no fault can be found in the impugned judgment. It is, therefore, affirmed. The appeals are dismissed with costs. Counsel's fee assessed at Rs. 10,000/-."
14. If the appellants-petitioners would have been aggrieved, they could have maintained the election petition, but as ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 17 has come on record, they were also knowing that respondent No.5 is not required to be suspended and that is reason that from January, 2016 till 10th August, 2017, they remained mum and .
never filed any election petition to get the election of respondent No.5 set aside. Had their been any ground for getting him suspended, under the provisions so called for, the petitioners would have filed election petition. There is nothing to conclude that the action of respondents No.1 to 4, not to suspend respondent No.5, is any way unreasonable and arbitrary.
15. Now coming to the third submission as made by learned counsel for the respondent that the petitioners-appellants want to continue with the writ petition and want the interim order to continue, seems to be correct as respondents No.6 to 13, who are in majority, excluding respondent No.5, have maintained no confidence motion, however, the same is not put to House because of the interim order. So, it is rightly vacated by the learned Court below in order to uphold the democratic process of allowing the majority of Members to continue with their no confidence motion. It is further held that respondent No.5 is ::: Downloaded on - 18/08/2018 22:58:44 :::HCHP 18 eligible to continue as a Member as there is nothing which shows that he cannot act as a Member, as has been held hereinabove.
The order impleading the private respondents is also as per law as .
they have interest in the litigation.
16. The net result of the above discussion is that the present latter patent appeal is without merit, needs dismissal and is dismissed accordingly. Pending application(s), if any, shall also stand disposed of.
r to (Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
August 17, 2018 Judge
(Yashwant)
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