Punjab-Haryana High Court
Sanjeev Kumar Verma vs The Director Urban Local Bodies And Ors on 5 September, 2014
Author: Mahesh Grover
Bench: Mahesh Grover, Jaswant Singh, Harinder Singh Sidhu
LPA no. 592 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA no. 592 of 2013
Date of Decision : 5 .09.2014
Sanjeev Kumar Verma
....Petitioners
Versus
The Director, Urban Local Bodies, Chandigarh and others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
HON'BLE MR. JUSTICE JASWANT SINGH
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present : Mr.Amit Jhanji, Advocate for the appellant
Mr. Rajiv Malhotra, Additional Advocate General, Haryana
Mr. Anil Rathee, Advocate
Mr. Sanjiv Pandit and Mr. Balbir Kumar Saini, Advocates
for respondents no. 6 to 14
MAHESH GROVER, J.
The order of reference succinctly brings out the controversy while posing questions which we have been asked to determine and since the referral order contains the summary of the issues it may not be necessary to extract the entire gamut of facts, but suffice it to say our proposed order would run sequelly to it.
We would briefly refer to the questions posed in the referral order, which are as under:-
(i) Whether in counting/calculating 'not less than two-thirds of the elected members of the Committee' for successful carrying out the no confidence motion against the REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 2 President or Vice-President, as provided under Section 21(3) of the Act, the nominated members who have been nominated under clauses (ii) and (iii) of Section 9(3) by virtue of their being members of the House of People and the Legislative Assembly, or members of the Council of States, have to be taken into consideration?
(ii) Whether the members of the State Legislative Assembly, the House of the People or the members of the Council of States, who have been nominated as members of the Committee under clauses (ii) and (iii) of Section 9(3) by virtue of their being members of the House of People and the Legislative Assembly, or the Council of States, can be deemed to be the 'elected members of the Committee' merely because they are elected members of the House of People and the Legislative Assembly, or the Council of State, particularly in view of Section 13-B of the Act?
(iii) Whether a member of the House of the People and Legislative Assembly can remain as elected member of the Municipal Committee or Council, as the case may be, in view of the bar created under Section 13-B of the Act?"
The effect of the amendments to the statute which have necessitated the instant deliberations emanate from amendment made to the provisions of the Constitution of India in particular Article 243(R) which is extracted herebelow:-
"243R. Composition of Municipalities.- (1) Save as provided in clause (2), all the seats in a Municipality shall be REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 3 filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards.
(2) The Legislature of a State may, by law, provide-
(a) for the representation in a Municipality of- (i) persons having special knowledge or experience in Municipal administration;
(ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;
(iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area;
(iv) the Chairpersons of the Committees constituted under clause (5) of article 243S:
Provided that the persons referred to in paragraph
(i) shall not have the right to vote in the meetings of the Municipality;
(b) the manner of election of the Chairperson of a Municipality."
Section 9 of the Haryana Municipal Corporation Act as substituted vide Haryana Act no. 3 of 1994 would read as follows:-
"9. Composition of Municipalities.- (1) The REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 4 municipalities constituted under Section 2A shall consist of such number of elected members not less than eleven as may be prescribed by rules.
(2) Save as provided in sub-section (3), all the seats in the municipality shall be filled in by persons chosen by direct election from the territorial constituencies in the municipal area and for this purpose each municipal area shall be divided into territorial constituencies to be known as wards.
(3) In addition to persons chosen by direct election from the territorial constituencies, the State Government shall, by notification in the Official Gazette, nominate the following categories of persons as members of a municipality :--
(i) not more than three persons having special knowledge or experience in municipal administration;
(ii) members of the House of the People and the Legislative Assembly of State, representing constituencies which comprise wholly or partly, the municipal area ; and
(iii) members of the Council of States, registered as electors within the municipal area :
Provided that the persons referred to in clause (i) above shall not have the right to vote in the meetings of the municipality :
Provided further that the Executive Officer in the case of a Municipal Council and the Secretary in the case of a Municipal Committee, shall have the right to attend all the meetings of the municipality and to take part in discussion but REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 5 shall not have the right to vote therein."
It was followed by certain amendments in Section 18 providing for election of President and Vice President and Section 21 which provides for their removal by passing no confidence motion. Both the sections are reproduced herebelow:-
"18. Election of President and Vice-president.-
(1) Every Municipal Committee or Municipal Council shall, from time to time, elect one of its members to be president for such period as may be prescribed, and the member so elected shall become president of the Municipal Committee or Municipal Council :
Provided that the office of the president in Municipal Committee and Municipal Councils shall be reserved for Scheduled Castes and women in accordance with the provisions made in section 10:
Provided further that if the office of president is vacated during his tenure on account of death, resignation or no confidence motion, a fresh election for the remainder of the period shall be held from the same category.
(2) Every Municipal Committee or Municipal Council shall also, from time to time, elect one vice-president :
Provided that if the office of the vice-president is vacated during his tenure on account of death, resignation or no confidence motion, a fresh election for the remainder of the period shall be held.
(3) The term of the office of vice-president shall be REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 6 one year."
Section 21 Motion of No Confidence against President or Vice President (1) xxxx (2) xxxxx (3)If the motion is carried with the support of not less than two- thirds of the elected members of the Committee, the president or vice-president, as the case may be, shall be deemed to have vacated the office.
(4)xxxxxx (5)xxxxxx"
These provisions of the Act were supplemented by Haryana Municipal Election Rules, 1978 and the relevant Rule 72 A and 72 B as inserted vide notification dated 13.9.1995 are extracted herebelow:-
"72-A.- No confidence motion against president or vice president.-- (1) A motion of no confidence against the president or vice-president of a committee may be made through a requisition given in writing addressed to the Deputy Commissioner, signed by not less than one third of the total number of the members of committee:
Provided that the members who have made such a motion may withdraw the same before the meeting is convened for the purpose.
Explanation.- Any fraction under this rule shall be taken as a whole.
(2) The Deputy Commissioner or such other officer not below the rank of Extra Assistant Commissioner, as the Deputy Commissioner may authorise, shall circulate to each member a copy of the requisition for the use of the members.
(3) The Deputy Commissioner or such other officer not below the rank of Extra Assistant Commissioner, as the REKHA Deputy Commissioner may authorise, shall convene a special 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 7 meeting by giving a notice of not less than fifteen days for the consideration of the motion referred to in sub-rule (1), and shall preside over at such meetings:
Provided that no such meeting for the purpose shall be convened unless a period of six months has elapsed since the date of last meeting convened for this purpose.
(4) If the motion is carried out with the support of not less than two-third of the members of the committee, the President or vice-president, as the case may be, shall be deemed to have vacated his office.
72-B Fresh election.-- If the office of the president or vicepresident is vacated during his tenure on account of no confidence motion, a fresh election for the remainder of the period shall be held in accordance with the provisions contained in this Part.
Provided that if the office of President is vacated during his tenure on account of no confidence motion, a fresh election shall be held from the same category." In the year 1995 first proviso to Sub Section (3) of Section 9 of the Act was inserted which provided that the persons provided in Clause (ii) and (iii) have neither any right to contest nor right to vote in the election or removal of the President or Vice President of the Municipal Committee or Municipal Council as the case may be.
"Provided further that the persons referred to in clauses (ii) and (iii) above shall neither have right to contest nor REKHA right to vote in the election or removal of president or vice- 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 8 president of Municipal Committee or Municipal Council, as the case may be:"
For the purposes of reference clause (ii) and (iii) of sub section 3 of Section 9 are once again extracted even at the cost of repetition:-
(ii) members of the House of the People and the Legislative Assembly of State, representing constituencies which comprise wholly or partly, the municipal area ; and
(iii) members of the Council of States, registered as electors within the municipal area :
The validity of this particular amendment in Sub Section 3 of Section 9 came up for consideration before the Full Bench in Raj Pal Chhabra vs. State of Haryana and others (1998-3) PLR 1 and subsequently in Krishan Kumar Singla vs. State of Haryana and others reported as (1999) 123 PLR 150 During the pendency of the consideration before this Court in Raj Pal Chhabra's case (supra), by virtue of amendment Haryana Act no. 18 of 1996 vide notification dated 16.11.1996 sub-section 3 of Section 9 was once again amended and clause (1) was omitted.
To recall, this clause pertains to nomination of persons having special knowledge and experience in municipal administration. The first proviso which provided that the persons referred to in clause (i) of Section 9 shall not have any right to vote in meeting was also omitted. A second proviso was added by amendment vide Haryana Act no. 3 of 1995 and substituted with the following proviso:-
"Provided that the persons referred to in clauses
(ii) and (iii) above shall neither have right to contest for the REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 9 election of president or vice-president nor right to vote in the meetings for the election of president and vice-president and in special meetings for consideration of motion of no-confidence against the president or vice-president of the committee, as the case may be."
It clearly took away the right of persons mentioned in clause
(ii) and (iii) to either contest for the election of President or Vice President or to vote in the meetings for such elections and were equally denied such right in the matters of no confidence.
Section 18 of the principal Act was also amended to incorporate similar spirit to sub section (1) where the words "one of its members" was substituted by "one of its elected members" and likewise sub section 3 of Section 21 was amended where words "not less than 2/3rd of the members" were substituted by "not less than 2/3rd of the elected members".
It was felt that these amendments, though in the notice of the Court dealing with Raj Pal Chhabra's case (supra) were not considered leading to a fresh reference in Krishan Kumar Singla's case (supra). The Full Bench in Krishan Kumar Singla's case (supra) made no deviation from its earlier decision in Raj Pal Chhabra's case (supra) i.e declaring that divesting the right to vote of members falling in category (ii) and (iii) was unconstitutional.
It would be apposite to refer to the conclusions of Raj Pal Chhabra's case and Krishan Kumar Singla's case which are extracted here below respectively:-
Para 56. of Raj Pal Chhabra's case Thus, in view of our above discussion, we hold that the no confidence motion against REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 10 the President or Vice President of municipality will have to be moved by at least one third of total number of members of the Committee, that is, nominated members as well as elected members. But, the motion has to be earned by not less than two thirds members of the committee (i.e the elected members and the members specified under clause (ii) and (iii) of sub-section (3) of Section 9.Further, the newly inserted 2nd proviso to sub-section (3) of Section 9 of the Act in so far as it debars the members falling in category(ii) and(iii) from exercising the right to vote, to that limited extent is declared ultra vires being repugnant and contrary to the provisions, spirit and basic structure contained in Article 243(R) and scheme of Chapter IX-A of the Constitution of India. Consequently, we strike down the same limited to the extent aforestated. Therefore, the members of a committee who are nominated under clause (ii) and (iii) being elected members from a much larger constituency, of which the municipality itself forms part, would have a right to vote while considering no confidence motion in the committee. In view of the meaning given by us to the expression 'members of the Committee' the No Confidence Motion in the facts of the present case would in any case fail, whether examined under the amended or unamended Act."
Paras of Krishan Kumar Singla's case
23.A bare reading of the amended provisions shows that clause
(i) of sub section (3) of Section 9 as well as the first proviso were omitted by the Amended Act while second proviso was substituted by the amended proviso. The effect of REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 11 amendment would be that the persons with special knowledge or experience need not be members of the Committee and the persons falling in the category of Clauses
(ii) and (iii), as per the amended proviso will have no right to contest the election of President or Vice President, to vote in the meeting for election of President or Vice President and special meeting for consideration of motion of no confidence against the President and Vice President of the Committee, as the case may be. There is no challenge in these writ petitions to the Amendment of 1996 in so far as omission of Clause (i) and first proviso is concerned. The challenge obviously is to explaining the expression "2/3rd" of the members of the Committee as expressed under Section 21 of the Act.
26." In fact what were the arguments before the Full bench in Raj Pal Chhabra's case have been incorporated by way of legislative amendment. The amended proviso to that extent suffers from the vice of same unconstitutionally vide which the earlier provisions of Section 9 were held to be bad. We adopt the same reasoning as given in Raj Pal Chhabra's case as that is fully applicable to the facts of the present case in coming to the same conclusion. Further more it is strange that the amendment proposes to divest the members of the House of People and Legislative Assemblies or Councils of State, as the case may be, from the right of voting. The learned counsel for the parties could hardly advance any REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 12 justification for debarring these two members from the right of voting in special meetings or when a motion of noconfidence is being considered in relation to President or Vice President of the Committee by the House. It appears to be totally arbitrary that these members would have right to vote in day-to-day affairs of the Committee, but would be deprived of the right to vote in the above stated meetings only.
25. Arbitrariness per se may not be a ground for adjudging the validity or otherwise of a legislative provision but when such arbitrariness coupled with the fact that the very object sought to be achieved by the Act is defeated, would have its cumulative effect on the validity of amendment of such provisions. But we have already held that exclusion or debarment of right of these elected members to a much larger constituency of which constituency of the Municipal Committee is a small part, is unconstitutional and is ultra vires of the protection given under Article 243-R of the Constitution of India.
26.Having given our considered view to the entire matter, we are unable to persuade ourselves to take any other view than the one taken by us in Raj Pal Chhabra's case. The Full Bench of this Court has enunciated certain principles based on well accepted norms of Interpretation of Statutes. Amongst others, for the following reasons, which have weighed with us, we would reiterate the same views:- REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 13
a) Object of the legislation sought to be achieved under the constitutional mandate of Article 243-R of the Constitution.
b) Object and purpose sought to be achieved by introduction of the concept of governance at grass root level;
c) The scope of limited power to legislate under Article 243-
R (2) of the Constitution in furtherance of the constitutional mandate contained in Article 243-R (1) of the Constitution.
d) Supremacy of union legislation over the State legislation;
e) Right protected or granted by necessary implication under the constitutional provisions, cannot be divested by State legislation.
(f) Before amendment of Section 21(3) it used the expression 'not less than 2/3rd of the members' who could carry the no confidence motion of a Committee. This Section was amended to incorporate the words 'not less than 2/3rd of the elected members.' The elected members naturally would include the members who become members of the Committee by virtue of their having been elected as member of the House of People, Legislative Assembly or council as the case may be, for the constituency of which the Municipal Committee is a segment. The expression 'elected members' must be given its proper connotation and meaning which would help to further the object of the legislation rather than to oust the people who were otherwise granted a protected right by necessary implication of the constitutional provisions. These elected members would obviously have a REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 14 better understanding of the controversies, and the implication of a particular decision taken by the Committee and the manner in which such decision could be effectively implemented at different levels of the State Administration. Thus, they effectively participate and help the administration of the Committee at the grass root level, being elected members from a much larger constituency, than that of the Municipal Committee. Thus, in our view, they would be covered by the expression 'elected members' used in Section 21(3) of the Act.
g)It is settled rule of law that normally the Court would not substitute its own words for the expressions used by the Legislature in the enactment. It is also equally true that Courts would not give any other meaning to the language of the Section other than the one which is permissible on its plain reading keeping in mind the object of the legislation. Even the amended provisions of Section 9 of the Act states that the Municipality constituted under Section 2(a) shall consist of such number of elected members, not less than 11, as may be prescribed by the rules.
xxxxx We are not able to find substance in the contentions raised on behalf of the petitioner. In fact we are also unable to see how does the question arises for reconsideration of the law settled in Raj Pal Chhabra's case in the present case. The Full Bench has taken a view, validity or otherwise of which, REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 15 in the normal course would be open to challenge only before the Appellate or Higher Court. In our view it could be subjected only to that jurisdiction.
Article 243-R(1) does not give any legislative power to the State. The constitutional provisions issue a mandate that seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies of the Municipal Area which shall be divided into territorial constituencies known as wards. While Clause (2) of Article 243-R imposes an obligation upon the State to legislate as Sub-clause (1) is subject to Clause (2). The legislation by the State could be for the limited purposes stated in Clause (2) of Article 243-R itself. The law must related to representation in a Municipality and would only include the persons specified therein though their number has been left to the discretion of the State Legislature. The State Legislature could also enact in relation to the manner of election of the Chairperson of the Municipality. We are at a loss to appreciate the need for either intermingling or substituting the expression "shall" or "may" as used by the Legislature in various provisions referred above. The argument based upon such interpretation would be a misconceived one."
The sum and substance of the aforesaid interpretation would mean that the persons mentioned in clause (ii) and (iii) of Section 9 i.e the elected members of the House of People and Legislative Assemblies or REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 16 Councils of the State as the case may be, would have the right to vote and would be construed to be elected members within the meaning of Section 23 of the Act (as amended).
The referral order makes a mention of Section 13B which restricts a person from being an elected member of the committee, member of the Legislative Assembly of the State or a member of the Parliament simultaneously, making an automatic cessation of the membership of the committee mandatory in the eventuality of the elected member of the committee managing to get elected as member of the Legislative Assembly or Parliament. Section 13B is extracted herebelow:-
"13-B. Restriction on simultaneous or double Membership.- (1) No person shall be an elected member of Committee, member of Legislative Assembly of the State or member of Parliament simultaneously.
(2) If an elected member of the Committee is elected to the Legislative Assembly or Parliament, as the case may be, he shall cease to continue as an elected member of the committee from the date he is declared as elected to the Legislative Assembly or Parliament, as the case may be."
Similarly by an amendment made in Section 9 in the year 2000 vide Haryana Act no. 14, the right of members mentioned in clause (ii) and
(iii) to contest for elections of President or Vice President were specifically debarred. This amendment is extracted herebelow:-
"Provided that the persons referred to in clauses
(ii) and (iii) above shall not have any right to contest for the election of the president or vice-president." REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 17
The proviso to Section 9(3) was once again substituted which is extracted herebelow:-
"Provided that the persons referred to in clause (i) above shall not have right to vote in the meetings of the municipalities and the persons referred to in clauses (ii) and
(iii) shall not have any right to contest for the election of president or vice-president."
In the year 2006 vide Haryana Act no. 26 clause 14A was inserted defining member to mean a member of the Municipality duly elected or nominated by the State Govt. Aforesaid section is extracted herebelow:-
"(14-A) "Member" means a member of the municipality duly elected or nominated by the State Government."
The tone and tenor of the aforesaid amendments in particular Section 18(1), 13B and 9(2) as also proviso to Section 9(3) would indicate that persons mentioned in clause (ii) and (iii) whether could be construed to be elected member of the committee or not would require re-determination particularly when both the Full Benches have not commented upon these amendments or aspects.
Participating in the general meetings of the committee upon being nominated as members of the same would be distinct from the right to vote in the election or removal of the President or Vice President particularly when such members have been divested of the right to become President or Vice President of the committee and deprived of simultaneous membership of the committee or member of the Legislative Assembly or REKHA 2014.09.12 15:22 I attest to the accuracy and integrity of this document High Court Chandigarh LPA no. 592 of 2013 18 Parliament for that purpose.
We agree with the questions posed to us by the referral order, that the effect of Section 13B and 18(1) of the Act were not taken into consideration by the earlier Full Bench decision rendered in Raj Pal Chhabra and Krishan Kumar Singla cases (supra) and therefore the matter would require re-determination by a larger Bench as we being a bench of equal strength would have absolute limitations in offering a reconsideration. Let the matter be placed before Hon'ble the Acting Chief Justice for constitution of a larger bench for determination of the issues raised above.
(MAHESH GROVER)
JUDGE
(JASWANT SINGH)
JUDGE
September 5, 2014 (HARINDER SINGH SIDHU)
rekha JUDGE
REKHA
2014.09.12 15:22
I attest to the accuracy and
integrity of this document
High Court Chandigarh