Himachal Pradesh High Court
Date Of Decision: 13.11.2024 vs State Of Himachal Pradesh And Ors on 13 November, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:11680
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 6796 of 2024
Date of Decision: 13.11.2024
_____________________________________________________________________
Kanta Devi
.........Petitioner
Versus
State of Himachal Pradesh and Ors
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Naveen Awasthi, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan
Kahol, Mr. Vishal Panwar and Mr. B.C. Verma,
Additional Advocates General and Mr. Ravi
Chauhan, Deputy Advocate General, for the State.
Mr.Sunil Mohan Goel, Senior Advocate with Mr.
Paras Dhaulta, Advocate, for respondents No. 6
and 7.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated 9.7.2024, passed by the Sub Divisional Officer (Civil), Baijnath, District Kangra, Himachal Pradesh, whereby person namely Asha Kumari i.e. respondent No.6, came to be elected as President of the Nagar Panchayat, petitioner herein has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein to set aside aforesaid election of respondent No.6 on the ground that elections were not 2 2024:HHC:11680 conducted by the Deputy Commissioner of the District concerned or Authorized Officer i.e. Sub Divisional Officer (Civil), Baijnath, District Kangra.
2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by learned counsel for the petitioner is that Sub Divisional Officer (Civil), Baijnath, who was further delegated power by the Deputy Commissioner, Kangra, to conduct elections of President and Vice President of Nagar Panchayat Baijnath, could not have further delegated such power to the Tehsildar, who otherwise had no authority, whatsoever, to conduct elections of President and Vice President of Nagar Panchayat Baijnath, Paprola.
3. Precisely, facts of the case as emerge from the record are that Nagar Panchayat Baijnath Paprola was constituted vide notification issued by the State of Himachal Pradesh. In December 2020, petitioner was elected as one of the ward member of the Nagar Panchayat and thereafter, she also contested the election of President of Nagar Panchayat and accordingly, on 6.2.0221, she was elected to the post of President /Chairman of the Nagar Panchayat concerned, however, no confidence motion was passed against the petitioner, as a result thereof, post of President of concerned Gram Panchayat fell vacant. Having taken note of 3 2024:HHC:11680 the vacancies to the post of the President and Vice President, Deputy Commissioner, Kangra at Dharamshala, District Kangra, Himachal Pradesh, vide order dated 26.6.2024, passed a detailed order (Annexure P-
1), thereby authorizing the Sub Divisional Officer (Civil) Baijnath to convene a meeting for conducting fresh elections to the post of President and Vice President of Nagar Panchayat Baijnath Paprola as per Rule 35 of Himachal Pradesh Municipal Election Rules 2015 as advised by the law department.
4. At this stage, it is apt to take note of the fact that before passing of aforesaid order dated 26.6.2024, Sub Divisional Officer (Civil), Baijnath, had applied for 19 days earned leave w.e.f. 24.6.2024 to 12.7.2024, which was sanctioned vide order dated 15.6.2024. While passing order dated 15.6.2024, thereby sanctioning earned leave in favour of the then, Sub Divisional Officer (Civil), Baijnath Sh. Devi Chand Thakur, Deputy Commissioner, Kangra at Dharamshala, District Kangra, Himachal Pradesh specifically ordered that Tehsildar, Baijnath, will also look after the work of Sub Divisional Officer (Civil), Baijnath, in addition to his own duties alongwith DDO powers till the joining of Sub Divisional Officer (Civil), Baijnath. In the aforesaid background, Tehsildar Baijnath, who admittedly was assigned the duties of Sub Divisional Officer (Civil), Baijnath, proceeded to issue notice for elections of President and Vice President in 4 2024:HHC:11680 terms of order dated 26.6.2024, passed by the Deputy Commissioner on 6.7.2024. Since on 6.7.2024, coram was not complete, he vide (Annexure P-3) again notified MLA of the area concerned as well as all elected members of the Nagar Panchayat that elections to the post of President and Vice President shall be held on 9.7.2024 at 11:00 am, in the hall of Nagar Panchayat Baijnath. Interestingly, on that day, petitioner alongwith Member of Legislative Assembly as well as other elected members came and participated in the elections, rather petitioner herein also contested the elections to the post of President. Since there was tie between the petitioner and respondent No.6, ultimately, respondent No.6 was elected on the basis of draw of lots as per provision contained under Section 93 of the Act. After election of respondent No.6, Tehsildar of the area concerned, who at the relevant time, was discharging his duties of Sub Divisional Officer (Civil), Baijnath, Kangra, proceeded to issue Annexure P-4, thereby declaring respondent No.6 elected against the post of President. In the aforesaid background, petitioner herein has approached this Court in the instant proceedings, praying therein to set-aside the election of respondent No.6 on the ground that same was not conducted by the Authorized Officer.
5. While inviting attention of this Court to Section 89 of the HP Municipal Election Rules, Mr. Naveen Awasthi, Advocate, representing the 5 2024:HHC:11680 petitioner, vehemently argued that election to the post of President and Vice President either could have been conducted by the Deputy Commissioner himself or Officer not below the rank of Sub Divisional Officer (Civil). He submitted that since in the case at hand, elections were conducted by the Tehsildar, not by the Deputy Commissioner or Sub Divisional Officer (Civil), respondent No.6 cannot be said to have been elected against the post of President, rather election to the post in question is required to be conducted afresh. To substantiate his aforesaid submission, learned counsel invited attention of this court to the judgment passed by the Hon'ble Apex Court in Sidhartha Sarawgi v. Board of Trustees for the port of Kolkata and Ors., 2014 16 SCC 248 (alongwith connected matter) to state that delegate cannot further delegate his/her power to another person. He submitted that since in the case at hand, actual power to conduct elections in terms of 89 of the Rules as referred herein above, was with the Deputy Commissioner, who had further delegated such power to Sub Divisional Officer (Civil), there was no authority, if any, with the Tehsildar to conduct elections.
6. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, representing the respondent-State and Mr. Sunil Mohan Goel, learned counsel for the respondent No.6 while refuting aforesaid 6 2024:HHC:11680 submissions made by the learned counsel for the petitioner specifically invited attention of this court to order dated 15.6.2024 (Annexure P-2), passed by the Deputy Commissioner, Kangra, thereby granting earned leave in favour of Sh. Devi Chand Thakur, the then, Sub Divisional Officer (Civil), Baijnath, w.e.f. 24.6.2024 to 12.7.2024 and further handing over the work of Sub Divisional Officer (Civil), Baijnath to the Tehsildar, Baijnath. Above named counsel while referring to the afore communication vehemently argued that since Tehsildar, Baijnath, was specifically asked to perform the work of Sub Divisional Officer (Civil), Baijnath, during 24.6.2024 to 12.7.2024, no illegality can be said to have been committed by him while conducting elections to the post of President and Vice President of Nagar Panchayat Paprola in terms of order dated 26.6.2024, passed by the Deputy Commissioner, Kangra at Dharamshala (Annexure P-1). Learned counsel for the respondents further argued that otherwise also, present petition is not maintainable for the reason that once petitioner, pursuant to notice given by the Tehsildar, participated in the election and lost, he otherwise is estopped from laying challenge to order thereby declaring respondent No.6 winner against the post of President. While making this court peruse pleadings adduced on record at the behest of the petitioner, learned counsel for the respondents further argued that there is 7 2024:HHC:11680 material suppression of facts by the petitioner because at no point of time, she disclosed to the court that she had also contested elections pursuant to notice issued by the Tehsildar, who as per petitioner was not authorized to conduct the elections to the post of President and Vice President of the Nagar Panchayat concerned.
7. While fairly concurring with the submissions made by the learned counsel for the petitioner that delegate cannot further delegate the power to third person, learned counsel for the respondents submitted that in the case at hand, Sub Divisional Officer (Civil) Baijnath, at no point of time, had actually delegated his power to the Tehsildar, rather on account of his being on leave, he was assigned duties of his office by the Deputy Commissioner, as a result thereof, he was Sub Divisional Officer of the area concerned w.e.f. 24.6.2024, to 12.7.2024. If it is so, no illegality or infirmity can be said to have been committed for having conducted elections to the post of President and Vice President
8. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this Court finds no illegality or infirmity in the same and as such, no interference is called for. Admittedly, vide order dated 26.6.2024, Deputy Commissioner, Kangra at 8 2024:HHC:11680 Dharamshala, District Kangra, had authorized the Sub Divisional Officer (Civil), Baijnath, to convene a meeting for conducting fresh elections of the office of President and Vice President Baijnath Paprola, which had fallen vacant on account of non-confidence motion passed against the then President and Vice President. It is not in dispute that prior to passing of order dated 26.6.2024, Deputy Commissioner, Kangra at Dharamshala, vide order dated 15.6.2024, had already granted earned leave w.e.f. 24.6.2024 to 12.7.2024 in favour of Sh. Devi Chand Thakur, HPS, who at the relevant time, was discharging duties of Sub Divisional Officer (Civil), Baijnath, as a result thereof, Tehsildar, Baijnath, was given/assigned duties of Sub Divisional Officer (Civil) Baijnath, in addition to his own duties alongwith DDO powers till the joining of Sub Divisional Officer (Civil), Baijnath. Since vide order dated 26.6.2024, direction already stood issued to the Sub Divisional Officer (Civil), Baijnath, to convene a meeting for conducting fresh elections to the office of President and Vice President Nagar Panchayat, coupled with the fact that during subsistence of afore order, Sub Divisional Officer (Civil) had gone on leave and in his place, duty was assigned to the Tehsildar of the area concerned, no illegality can be said to have been committed by the Tehsildar of the area concerned, by conducting elections to the post of President and Vice President, Nagar 9 2024:HHC:11680 Panchayat, especially when, it clearly emerges from the pleadings as well as other documents adduced on record that such elections were conducted by the Tehsildar of the area concerned in the capacity of Sub Divisional Officer (Civil), Baijnath. It is none of the case of the petitioner that on 9.7.2024, on which date, elections to the post of President and Vice President were conducted, Tehsildar of the area was not exercising the power of Sub Divisional Officer (Civil) Baijnath, District Kangra. Had the Sub Divisional Officer despite his being in the station delegated power to the Tehsildar of the area to conduct the elections, this court would have proceeded to agree with the learned counsel for the petitioner in as much as elections to the posts in question were conducted by the incompetent authority, however, in the case at hand, as has been taken note herein above, vide order dated 15.6.2024, (Annexure P-2), Tehsildar of the area concerned stood assigned duties of Sub Divisional Officer (Civil), Baijnath, w.e.f. 24.6.2024 to 12.7.2024 in addition to his own duties alongwith DDO powers till the joining of Sub Divisional Officer (Civil), Baijnath. Since on 9.7.2024, Sub Divisional Officer (Civil), Baijnath, had not joined and he was on leave and during this period, Tehsildar of the area concerned was exercising power of Sub Divisional Officer pursuant to order dated 15.6.2024, passed by the Deputy Commissioner Kangra at Dharamshala, District Kangra, Himachal 10 2024:HHC:11680 Pradesh, no illegality can be said to have been committed by him while conducting elections to the post of President and Vice President in terms of order dated 26.6.2024, passed by the Deputy Commissioner, Kangra at Dharamshala, District Kangra, Himachal Pradesh.
9. At this stage, it would be apt to take note of clause 35.49 of Handbook on Personal Matters (Volume-III) of which, which reads as under:
" 35.49 Regarding sanctioning of leave and LTC and assignment of charge in favour of IAS/HPAS/HPSS officers and Heads of Departments‐ instructions thereof. Instances have come to the notice of the State Government that some officers are sanctioning leave for more than 30 days and LTC in favour of officers who working under their control. Taking all the relevant factors into account, the Govt. re‐iterated that Deputy Commissioners/Heads of Departments are competent to sanction earned leave, half pay leave, commuted leave to the IAS/HPAS officers working under their control, upto a maximum period of 30 days at a stretch. The leave sanctioning authority is also competent to hand over the additional charge during the leave period of the concerned officer to the other officer working under his control. However, where the charge is required to be given to an officer posted in another office/department, such proposal needs to be sent to the Government in the Department of Personnel. Instances have also come to the notice of the Government that apart from sanctioning earned leave/casual leave, Heads of Departments are sanctioning Home Town Leave Travel Concession/Leave Travel Concession ሺBharat Darshanሻ in favour of IAS/HPAS officers working under their control. It has been clarified that powers for sanctioning of 11 2024:HHC:11680 Home Town LTC/LTC in favour of IAS/HPAS officers/Heads of Departments have not been delegated. Therefore, such cases for sanctioning of Home Town LTC/LTC working under their control be forwarded to the Department of Personnel for necessary sanction."
10. Careful perusal of aforesaid provision clearly reveals that leave sanctioning authority is also competent to hand over the additional charge during the leave period of the concerned officer to the other officer working under his control. Since in the case at hand, Deputy Commissioner, Kangra, was competent to sanction leave to Sub Divisional Officer (Civil), Baijnath, he was well within his rights to give charge of post of the Sub Divisional Officer to Tehsildar, who by virtue of passing order dated 15.6.2024 was thereafter exercising duties of Sub Divisional Officer (Civil), Baijnath, w.e.f. 24.6.2024 to 12.7.2024. Since elections to the post in question were held on 9.7.2024, while Tehsildar was possessing power of Sub Divisional Officer (Civil), no illegality can be said to have been committed by him while conducting elections, to the post of President and Vice President. At this stage, it would be apt to take note of judgment passed by the Hon'ble Apex Court in Sidhartha Sarawgi v. Board of Trustees for the Port of Kokata and Ors. (2014) 16 SCC 248 (a/w connected matter), pressed into service by the learned counsel for the petitioner, wherein Hon'ble Apex Court while dealing with issue of 12 2024:HHC:11680 legislative function/power held that Legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and formally enacting that policy into a binding rule of conduct.
11. Having perused aforesaid judgment in its entirety, this Court finds no application of the same in the case at hand. In the aforesaid judgment, though it has been held that delegate cannot further delegate its power to third person, however, as has been discussed in the instant case, there was no occasion, if any, for Sub Divisional Officer (Civil), Baijnath, to delegate his power to the Tehsildar, rather vide order dated 15.6.2024, passed by the Deputy Commissioner, Sub Divisional Officer (Civil) Baijnath, was granted permission to avail earned leave w.e.f. 24.6.2024 to 12.7.2024 and during this period, duties of office of Sub Divisional Officer (Civil), Baijnath, were assigned to the Tehsildar, who besides discharging duties of Tehsildar was also authorized to perform duties of Sub Divisional Officer (Civil), Baijnath, hence, there is no question of delegation of power, if any, by Sub Divisional Officer (Civil), Baijnath, to Tehsildar
12. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds no illegality 13 2024:HHC:11680 or infirmity in the same and as such, same is upheld. Accordingly, present petition fails and dismissed.
November 13, 2024 (Sandeep Sharma),
(manjit) Judge