Punjab-Haryana High Court
Dalip Kumar And Anr vs State Of Haryana And Ors on 19 December, 2018
Equivalent citations: AIRONLINE 2019 P AND H 1179
Bench: A.B. Chaudhari, Harnaresh Singh Gill
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Writ Petition No.19822 of 2018 (O & M)
Date of Decision: December 19th, 2018
Dalip Kumar & another
..... PETITIONERS
VERSUS
State of Haryana & others
..... RESPONDENTS
...
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE HARNARESH SINGH GILL
...
PRESENT: - Mr. M.K. Verma, Advocate, for the petitioners.
Mr. Anil Mehta, Deputy Advocate General, Haryana.
Mr. Anirudh Singh, Advocate, for respondent No.2.
. . .
Harnaresh Singh Gill, J
C.M. No.16861 of 2018
Application is allowed.
Rejoinder filed on behalf of respondent No.1 is taken on
record.
CWP No.19822 of 2018
Rule. Rule heard with the consent for the rival parties.
By the present petition, the petitioners seek a writ of
mandamus for directing the respondents to accord consent for conducting
general election of the Municipal Council, Rewari.
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CWP No.19822 of 2018 [2]
FACTS
In the present case, house of Municipal Council, Rewari
was constituted in Year 2013. The first meeting of the house of the
Municipal Council, Rewari was held on 19.03.2013. Thus, as per the
provisions of Article 243-U of the Constitution of India and Section 12 of
the Haryana Municipal Act, 1973 (for short, '1973 Act'), the State Election
Commission was bound to conduct the election before 19.03.2018. The
house of Municipal Council, Rewari was dissolved w.e.f. 19.03.2018 and
Sub Divisional Officer (Civil), Rewari was appointed as Administrator of
the Municipal Council by the Principal Secretary, Government of Haryana,
Urban Local Bodies Department.
As per the stand taken by the State of Haryana, in its short
reply by way of affidavit of Shri Shekhar Vidyarthi, Special Secretary to
Government of Haryana, Urban Local Bodies Department, the constitution
of adhoc committee and issuance of preliminary notification for the purpose
of delimitation of the wards and final notification were according to the
Rules 3, 4, 9 and 10, respectively, of Haryana Municipal Delimitation of
Ward Rules, 1977. Further stand of the respondent No.1 in this case is that
State Government has already issued the preliminary notification and
objections/suggestions received against the preliminary notification were
under process of examination and the final notification of wardbandi is to be
issued in due process of law. It is not disputed that tenure of the elected body
of Municipal Council was completed on 19.03.2018. It is further stated in
the affidavit that Municipal Administration with the collaboration of Deputy
Commissioner, Rewari are under process to complete the aforesaid survey
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CWP No.19822 of 2018 [3]
and to complete the process, the department of answering respondent has
taken various steps to expedite the matter for preparing the proposal of
delimitation of wards of Municipal Council, Rewari. It is further stated that
State Election Commissioner, Haryana, vide notification dated 23.01.2018
proposed to take further action on the basis of existing delimitation of wards
of Municipal Council, Rewari but the department has requested the State
Election Commission that as process of survey of population of Municipal
Council, Rewari is under process and moreover, due to the limit extension of
Municipal Council, population/seats may be increased and fresh wardbandi
is required.
It is also not disputed that Municipal Council, Rewari was
constituted in year 2013 and first meeting of the house of Municipal Council
was held on 19.03.2013. The State Election Commission/ respondent No.2
was bound to conduct the election on or before 19.03.2018 i.e. before expiry
of its duration.
As regards the stand taken by the State Election
Commission/ respondent No.2 in an affidavit through Dr. P.K. Sharma,
Secretary, the general election of the Municipal Council, Rewari was
required to be conducted before 19.03.2018 but because of non-completion
of wardbandi by the State Government and non-receipt of consent from the
State Government, the election could not be conducted in time. It is the
further stand of respondent No.2 that after every official census, the total
number of seats of each committee/ council is required to be fixed by the
Government on the basis of latest census figures.
It is the specific stand of the State Election Commission/
respondent No.2 that in view of constitutional responsibilities and provisions
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CWP No.19822 of 2018 [4]
of Act and Rules, a letter dated 23.05.2014 was sent to the Government with
a request to complete the work of re-determination of number of wards and
reservation of seats or the re-delimitation of territorial limits of
municipalities well before the expiry of duration, so that the Commission
would be in a position to conduct the election of the municipalities in time. It
is further the stand of respondent No.2 that several reminders in this regard
were sent to the Government i.e. i) D.O. letter dated 15.12.2017; ii) Letter
dated 23.01.2018; iii) Letter dated 02.02.2018; iv) Letter dated 19.02.2018;
v) Letter dated 22.02.2018.
ARGUMENTS
The learned counsel for the petitioners has argued that
election of Municipal Council, Rewari was held in the year 2013 and the
first meeting of the elected house was conducted on 19.03.2013. He has
further argued that the respondents were bound to conduct and complete
election before 19.03.2018. The House of Municipal Council, Rewari was
dissolved w.e.f. 19.03.2018 and SDO (Civil), Rewari has been appointed as
Administrator.
It is further argued that despite of the various reminders
from the Election Commission/ respondent No.2, the election of Municipal
Council, Rewari has not been conducted which is against Section 12 of 1973
Act and against Article 243-U of the Constitution of India.
The specific contention raised by counsel for the petitioners
is that since the house stands dissolved on 19.03.2018, it becomes incumbent
upon the State Election Commission and other authorities to carry out the
mandate of Constitution and see that newly elected body is constituted in
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CWP No.19822 of 2018 [5]
time and the election of municipality is conducted before the expiry of its
tenure of five years.
It is the common stand of the petitioners and respondent
No.2 to conduct the election on old wardbandi. It is failure of the
Government to grant consent for holding the election.
The arguments raised on behalf of respondent No.1 are that
the State Government has already issued preliminary notification and
objections/suggestions received against the preliminary notification are
under process of examination and final notification of wardbandi will be
issued soon.
It is argued by the counsel for respondent No.2/ Election
Commission that the election of the Municipal Council, Rewari was required
to be conducted before 19.03.2019. But due to non completion of wardbandi
and consent from the State Government, election could not be conducted.
Learned counsel for respondent No.2 has further argued that State
Government, vide memo dated 17.04.2018 has given nod to conduct election
of 18 Municipal Councils and of two bye election in the State of Haryana
except Municipal Council, Rewari.
CONSIDERATION
We have heard counsel for the rival parties for quite some
time and have perused the documents on file.
From the above facts, it is clear that last election of the
Municipal Council, Rewari was conducted on 10.02.2013 and its first
meeting was held on 20.03.2013. The election of the council was required to
be conducted before 19.03.2018.
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CWP No.19822 of 2018 [6]
As per Section 12 of the 1973 Act, an election to constitute
a municipality shall be completed before the expiration of period of six
months from the date of its dissolution. Section 12 of the 1973 Act is
reproduced hereunder for ready reference:
"12. Duration of municipality, 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:
Provided that a municipality shall be given a reasonable
opportunity of being heard before its dissolution :
Provided further that all municipalities existing
immediately before the commencement of the Constitution
(Seventy-fourth Amendment Act, 1992 shall continue till
the expiration of their duration unless sooner dissolved by a
resolution passed to that effect by the State Legislature.
(2) An election to constitute a municipality shall be
completed. -
(a) before the expiry of its duration specified in sub-
section (1);
(b) before the expiration of a period of six months
from the date of its dissolution:
Provided that when 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 section for constituting the municipality for such
period:
Provided further that the first election to a municipality
constituted after the commencement of the Haryana
Municipal (Amendment) Act, 1994, may be held within a
period of one year of its being notified as a municipality:
Provided further that elections to the municipalities
where no elected body exists at the time of commencement
of this Act may be held within a period of one year.
(3) 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 sub-
section (1) had it not been so dissolved.
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CWP No.19822 of 2018 [7]
(4) If a municipality is not reconstituted before the
expiration of its duration laid down in sub-section (1), it
shall be deemed to have been dissolved on the expiry of the
said duration and, thereupon, provisions of sub-section (2)
of section 254 shall be applicable."
The Constitution of India has also given a clear mandate
regarding the duration of municipalities under Article 243-U which reads
thus:-
"243U. 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
(1) had it not been so dissolved."
As per Section 7A of the Haryana Municipal (Amendment)
Act, 2018, the work related to delimitation and reservation of wards shall be
completed six months before the completion of tenure of the Municipal
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Committee, failing which the State Election Commission shall go ahead with
2018.12.19 15:48
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integrity of this document
CWP No.19822 of 2018 [8]
the process of preparing electoral rolls and conduct the election on the basis
of existing delimitation and reservation of wards. Section 7A of the 1973
Act is reproduced hereunder:-
"7A. Time limit for delimitation and reservation of wards
- The work relating to the delimitation and reservation of
wards of the municipal committee shall be completed six
months before the completion of the tenure of municipal
committee, failing which the State Election Commission
shall go ahead with the process of preparation of electoral
rolls and conduct of elections on the basis of existing
delimitation and reservation of wards"
It is clear that before a municipal council is dissolved, an
election is to be conducted before the expiration of six months from the date
of its duration. In the present case, when the Municipal Council was
dissolved, SDO (Civil) was appointed as Administrator of the Municipal
Council. Despite the clear correspondence made by the Secretary, State
Election Commission, vide affidavit dated 31.10.2018, a number of
reminders were given to the State Government to complete the work of
re-determination of wards and reservation of the seats but to no use. It was
also brought to the notice of the Government that election of the council can
be conducted on the existing wardbandi to avoid unnecessary delay and
litigation in the matter in order to fulfil the constitutional obligation.
The Hon'ble Supreme Court in the case of Kishansing
Tomar vs. Municipal Corporation of City of Ahmedabad, AIR 2007 SC
269 has specifically laid down that the provision in the Constitution was
inserted to see that there should not be any delay in constitution of the new
Municipality every five years and in order to avoid the mischief of delaying,
the process of election and allowing the Administrator to continue, the
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provisions have been suitably added to the Constitution. It further laid down
that it is necessary for all the State Governments to recognize the
significance of the State Commission, which is a constitutional body and it
shall abide by the directions of the Commission in the same manner in which
it follows the directions of the Election Commission of India during the
elections for the Parliament and State Legislatures.
The law laid down by Hon'ble Supreme Court of India in
Special Reference No.1 of 2002 decided on 28.10.2002 (under Article
143(1) of the Constitution), reported as AIR 2003 SC 87, on the similar
question is as follows:-
"The impossibility of holding the election is not a factor
against the Election Commission. The maxim of law
impotentia exusat legem is intimately connected with
another maxim of law lex non cogit ad impossibilia.
Impotentia 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. Where the act of God prevents the
compliance of the words of a statute, the statutory provision
is not denuded of its mandatory character because of
supervening impossibility caused by the act of God. (See
Broom's Legal Maxims 10th Edition at pp. 1962-63 and
Craies on Statute Law 6th Ed. P. 268). These aspects were
highlighted by this Court in Special Reference 1 of 1974
(1975 (1) SCR 504). Situations may be created by interested
persons to see that elections do not take place and the
caretaker government continue in office. This certainly
would be against the scheme of the Constitution and the
basic structure to that extent shall be corroded."
In the present case, sequence of circumstances show that nominated SDO
(Civil) is an Administrator who could not be allowed to continue beyond six
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CWP No.19822 of 2018 [10]
months within which elections ought to have been held of the Municipal
Council, Rewari. Thus, it is clear that respondent - State has not performed
its statutory obligation.
We may add, the little, large Indians shall not be hijacked
from the course of free and fair election by State machinery 'dressed in little,
brief authority'. For 'be you and so high, the law is above you'.
We are of the opinion that necessity of completing the
election expeditiously as per the Constitution and Haryana Municipal Act is
in public interest and to see that the governance by the people is not
paralysed.
To sum up, the petition thus will have to be allowed with
necessary directions. Hence we made the following order:
ORDER
i) CWP No.19822 of 2018 is allowed;
ii) Respondents are directed to hold and complete the election process of the Municipal Council, Rewari in accordance with law on the existing delimitation of wards;
iii) No order as to costs.
(A.B. Chaudhari) Judge (Harnaresh Singh Gill) th December 19 , 2018 Judge avin Speaking/ Reasoned: Yes/ No Whether Reportable: Yes/ No AVIN KUMAR 2018.12.19 15:48 I attest to the accuracy and integrity of this document