Himachal Pradesh High Court
Kamal Kumar vs State Of H.P. & Others on 18 December, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3443 of 2020 Reserved on: 17.12.2020 .
Date of decision: 18.12.2020
Kamal Kumar. ...Petitioner.
Versus
State of H.P. & others. ...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 Yes For the Petitioner: Mr.Anup Rattan, Advocate, through Video Conferencing.
For the Respondents: Mr.Desh Raj Thakur, Additional Advocate General, for respondents No. 1, 2, 4 and 5, through Video Conferencing.
None for respondent No. 3.
Vivek Singh Thakur, Judge In Himachal Pradesh, in accordance with the time schedule prescribed by State Election Commission under Section 281 of Himachal Pradesh Municipal Act, 1994 (herein after referred as the "Act"), reservation and rotation of seats of members of municipalities (Nagar Parishads and Nagar Panchayats) have been undertaken by the respective Deputy Commissioners in their Districts, as provided under Rule 10 of Himachal Pradesh Municipal Election Rules, 2015 (herein after referred as "Election Rules").
2. Deputy Commissioner, Hamirpur vide order dated 10.8.2020 had authorized Sub Divisional Officers (Civil) (SDMs) Hamirpur, Sujanpur, Nadaun and Barsar to undertake process for reservation and rotation of seats for the members of Nagar Parishads Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 2 CWP No. 3443 of 2020 and Nagar Panchayats located in their respective Sub-Divisions and in pursuance thereto Sub Divisional Officer (Civil), Nadaun vide public notice dated 14.8.2020 (Annexure P-3) had notified the date i.e. .
17.8.2020 for the said purpose and had undertaken the process on 17.8.2020 and declared roster of reservation of seats of members of Municipalities situated in his jurisdiction including Nagar Panchayat, Nadaun.
3. Deputy Commissioner vide order dated 27.8.2020 (Annexure P-2) had cancelled the process of determining roster, undertaken by Sub Divisional Officers (Civil) in District Hamirpur, on the ground that said process was not in conformity with Rule 10 of Election Rules and provisions of the Act and had decided to undertake the said process himself.
4. A separate notice dated 27.8.2020 under Rule 10 (8) of Election Rules (Annexure P-1) was also issued by Deputy Commissioner, notifying the date as 31.8.2020 for undertaking the process under Rule 10 of Election Rules.
5. On 29.8.2020, Department of Urban Development to the Government of Himachal Pradesh has issued clarification regarding reservation of wards for women vide communication dated 29.8.2020 (Annexure P-5), clarifying the provision and process to be undertaken for reservation of wards for women in Municipalities. Vide notification dated 29.8.2020 (Annexure P-6), State Election Commission of Himachal Pradesh has extended the date for reservation of wards till 5.9.2020.
6. Present petition has been preferred against cancellation of process by Deputy Commissioner which was undertaken by SDM, ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 3 CWP No. 3443 of 2020 Nadaun in pursuance to the authorization dated 10.8.2020 by Deputy Commissioner and also assailing fresh process undertaken by Deputy Commissioner in pursuant to order dated 27.8.2020 (Annexure P-1) .
and clarification dated 29.8.2020 (Annexure P-5), referred supra, on the ground that action of Deputy Commissioner is arbitrary, malafide, contrary to law and violative of Article 14 of the Constitution of India.
7. It is submitted by Mr.Anoop Rattan, learned counsel for the petitioner that Rule 10 of Election Rules, empowers the Deputy Commissioner to undertake the process for reservation and rotation of seats for the members of Nagar Parishads/Nagar Panchayats and Sub Divisional Officer (Civil) is an Officer subordinate to him and thus in view of Section 18 of Himachal Pradesh General Clauses Act, SDO (Civil) is empowered to perform the function for which Deputy Commissioner is empowered under Rule 10 of Election Rules, particularly when, in present case, as Deputy Commissioner himself had authorized SDO (Civil) to undertake the process for reservation and rotation of seats for Municipalities. It is submitted that once exercise has been undertaken by SDO (Civil) validly, Deputy Commissioner cannot undo the said exercise unilaterally without any reason as, according to learned counsel for the petitioner, no reason has been assigned in order dated 27.8.2020, whereby process undertaken by SDO (Civil) has been cancelled. It is further submitted that even in the reply to the petition, no documents or any other material has been placed on record, justifying the action of Deputy Commissioner.
8. On behalf of petitioner, reliance has been placed on judgment of the Supreme Court in case Ram Kishan Vs. Union of ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 4 CWP No. 3443 of 2020 India and others (1995) 6 SCC 157, wherein disciplinary action taken by Additional Deputy Commissioner of Police was not interfered by the Supreme Court by taking into consideration Section 19 of General .
Clauses Act, which is para materia to Section 18 of Himachal Pradesh General Clauses Act.
9. Learned counsel for the petitioner has also referred judgment of the Supreme Court in case Dravida Munnetra Kazhagam (DMK) Vs. Secretary, Governor's Secretariat and others, (2020) 6 SCC 548, wherein after relying its earlier pronouncement in case titled Election Commission of India Vs. Ashok Kumar (2000) 8 SCC 216, it has been held that any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of election and facilitates the completion of election and action taken or order issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or statutory body has been shown to have acted in breach of law.
10. Mr.Desh Raj Thakur, learned Additional Advocate General has submitted that there is nothing on record to establish that exercise of power by Deputy Commissioner for passing impugned order and undertaking the process of reservation again by himself, are arbitrary, malafide or contrary to law, rather he submits, material on record reveals that, in view of provisions of H.P. General Clauses Act and Election Rules, 2015, Deputy Commissioner in order to rectify the mistake has acted legally and he was and is competent to do so as power to do also includes to undo. He has further submited that Rule ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 5 CWP No. 3443 of 2020 10 of Election Rules prescribed the Deputy Commissioner as an authority to undertake the process and, as Deputy Commissioner was not empowered to delegate the said power to his subordinate, .
therefore, Section 18 of H.P. General Clauses Act is not applicable in present case.
11. Learned Additional Advocate General has also referred judgment dated 13.12.2017 passed by Division Bench of this Court in CWP No. 475 of 2017, titled Jagdish Chand Memorial Trust Vs. State of Himachal Pradesh to substantiate his plea that action of Deputy Commissioner in cancelling the process undertaken by SDO (Civil), which was ex facie illegal being contrary to Rule 10 of Election Rules, is justified for rectifying procedural irregularity and there is no illegality and irregularity in the decision of Deputy Commissioner taken to rectify his own mistake as decision of Deputy Commissioner authorizing the SDO (Civil) to undertake the process was not valid being beyond competence of the Deputy Commissioner and doctrine of promissory estoppel is not applicable in present case.
12. Learned Additional Advocate General has also relied upon judgment of Supreme Court in case titled as Union of India and another Vs. G. Ganayutham (Dead) by LR's, AIR 1997 SC 3387, wherein the Supreme Court has observed as under:-
"28. The current position of proportionality in administrative law in England and India can be summarized as follows:-
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 6 CWP No. 3443 of 2020 consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court .
would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles."
... ... ... ... ... ...
13. Learned Additional Advocate General referring judgment of Supreme Court in case titled as Indian Railway Construction Co. Ltd. Vs. Ajay Kumar, (2003) 4 SCC 579, has contended that he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers, whereas petitioner has failed to establish either of these ingredients necessary to invalidate or nullify the impugned act and order of Deputy Commissioner, Hamirpur.
14. Referring pronouncement of Apex Court in State of Jharkhand and others Vs. Ambay Cements and another, (2005) 1 SCC 368, Learned Additional Advocate General has canvassed that whenever the statute prescribes that a particular act is to be done in a particular manner, such manner would be mandatory, as it is a cardinal rule of interpretation that where a statute provides that a particular ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 7 CWP No. 3443 of 2020 thing should be done, it should be done in the manner prescribed and not in any other way.
15. Section 18 of Himachal Pradesh General Clauses Act .
reads as under:-
"18. Official chiefs and subordinates.--In any Himachal Pradesh Act, a power to issue notification or make orders, rules, or bye-laws relative to the chief or superior of an office shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior, to prescribe the duty of the superior."
16. It would also be apt to reproduce relevant provisions of Rule 10 of Election Rules, which reads as under:-
"10. Reservation and rotation of seats of members- (1) The process for reservation and rotation of seats for the members shall be undertaken in accordance with the time schedule to be prescribed in this behalf by the State Election Commission under section 281 of the Act.
(2) ... ... ... ...
(3) ... ... ... ...
(4) ... ... ... ...
(5) ... ... ... ...
(6) ... ... ... ...
(7) ... ... ... ...
(8) The Deputy Commissioner shall issue a three days clear notice specifying therein the date, place and time of the draw of lots and such notice shall be affixed on the notice board of his office and that of the municipality and he shall also proclaim it by beat of drums within the municipal area. The draw shall take place on the specified date, place and time specified in the presence of atleast three prominent person of the municipal area and three gazetted officers of the State Government.
(9) ... ... ... ...
(10) ... ... ... ...
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8 CWP No. 3443 of 2020
(ii) The reservation made by the Deputy Commissioner shall be given wide publicity by him by affixing a copy of the order of such reservation on the notice board of his office and that of .
the municipality and it shall also be sent to the State Government".
17. Election Rule 10 prescribes the Deputy Commissioner as an authority who shall issue notice under Rule 10 (8) and who shall give wide publicity with respect to reservation made by him under Rule 10(11). Deputy Commissioner is Officer who is also District Election Officer (Municipalities) under Rule 32(1) of Himachal Pradesh Municipal Election Rules, 2015 and he has no authority to delegate his powers conferred upon him under Rule 10 of Election Rules. Therefore, he was not empowered to appoint or depute SDO (Civil) to undertake the process under Rule 10 of Election Rules. Therefore, his action authorizing SDO (Civil) to undertake process under Rule 10 was contrary to law. Contrary to plea of the petitioner, this fact has been reflected in impugned order dated 27.8.2020 (Annexure P-2) by Deputy Commissioner.
18. Plea of the petitioner that Section 18 of Himachal Pradesh General Clauses Act saves the action of SDO (Civil) undertaken by him on behalf of Deputy Commissioner, is also misconceived. Section 18 of Himachal Pradesh General Clauses Act provides that power to the chief or superior of an office shall apply to the deputies or subordinates, lawfully performing the duties of that office in the place of their superior, to prescribe the duty of superior. Therefore, in order to attract Section 18 of the Himachal Pradesh General Clauses Act, SDO (Civil), subordinate to Deputy Commissioner at the time of undertaking the process under Rule 10 of Election Rules, must be lawfully ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 9 CWP No. 3443 of 2020 performing the duties of the office of Deputy Commissioner as District Election Officer (Municipalities). In present case while undertaking the process under Rule 10 of Election Rules, SDO (Civil) was not working .
as a subordinate lawfully performing the duties of office of Deputy Commissioner, nor he could be, as Deputy Commissioner acting as District Election Officer (Municipalities) was not empowered to delegate his powers as District Election Officer and appoint his subordinate to exercise his function.
19. It is not a case that Deputy Commissioner was on leave or not available for performing his duty for any other reason and thus SDO (Civil) was deputed to perform duties in the office of Deputy Commissioner in place of Deputy Commissioner, but he was acting as an officer authorized by Deputy Commissioner. Since Deputy Commissioner cannot delegate his powers and appoint SDO (Civil) to exercise his function, SDO (Civil) cannot be said to be lawfully performing duties of the office of Deputy Commissioner or District Election Officer (Municipalities). SDO (Civil), as also evident from public notice dated 14.8.2020, has not acted as an officer performing the duties of Deputy Commissioner under Election Rules, but he had performed his duties in the capacity of SDO (Civil), whereas Section 18 of the Act provides that subordinate officer must be performing duties of the office of superior lawfully in place of his superior. Deputy Commissioner was occupying his office, therefore, SDO (Civil) was not performing duties of the office of Deputy Commissioner in place of Deputy Commissioner nor he could be, as Deputy Commissioner was available and SDO (Civil) was never authorized, appointed or deputed to perform the duties of the office of Deputy Commissioner. Therefore, ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 10 CWP No. 3443 of 2020 Section 18 of Himachal Pradesh General Clauses Act is not attracted in present case. Further Act and Rules do not empower Deputy Commissioner to authorize SDO (Civil to do so.
.
20. In Ram Kishan's case (supra), the Supreme Court has taken into consideration, not only Rule 19 of General Clauses Act, but also Rule 4 of Delhi Police (Appointment and Recruitment) Rules, 1980, wherein Additional Deputy Commissioner of Police was also authority upon whom the power of appointment had been delegated and, therefore, he was competent to impose the penalty of dismissal from the service and thus exercise of power, with the aid of Rules and Appeal Rules, by the Additional Deputy Commissioner, in that case, was not considered to be without authority of law or void and it was held that he was competent to pass the order. Therefore, this judgment is not applicable in given facts and circumstances of present case.
21. As also propounded by the Supreme Court in Dravida Munnetra Kazhagam's case, petition in present case is not a petition 'calling in question an election' and, therefore, there is no bar to entertain this petition.
22. It is settled position of law that power to do includes the power to undo. As provided under Section 20 of Himachal Pradesh General Clauses Act, power to make an order includes power to add to, amend, vary or rescind the said order. Therefore, Deputy Commissioner by passing impugned order dated 27.8.2020 has not exceeded his jurisdiction, rather has acted lawfully in order to rectify his mistake and to correct the wrong, as Act and Rules do not empower him to delegate his power to his subordinates and to ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP 11 CWP No. 3443 of 2020 authorize SDO (Civil) to undertake process under Rule 10 of Election Rules.
23. As the authority to undertake the process under rule 10 of .
Election Rules was illegal and contrary to law, therefore, process for reservation and rotation of seats undertaken by SDO (Civil) was also illegal, null and void and, therefore, cancellation thereof by Deputy Commissioner does not warrant any interference.
24. There is nothing on record to substantiate the plea of the petitioner that Deputy Commissioner has acted malafide or impugned action is violative of Article 14 of the Constitution of India. For discussion hereinabove, his action and decision cannot be said to be arbitrary or contrary to law, hence warrants no interference.
25. No other point urged or raised.
Accordingly present petition is dismissed, so also the pending application(s), if any.
(Vivek Singh Thakur), th 18 December, 2020 Judge.
(Keshav) ::: Downloaded on - 18/12/2020 20:18:58 :::HCHP