Punjab-Haryana High Court
Dushyant Kumar vs State Of Haryana And Others on 6 March, 2014
Equivalent citations: AIR 2014 PUNJAB AND HARYANA 71, (2014) 2 RECCIVR 265
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.3595 of 2014 (O&M)
DATE OF DECISION: 06.03.2014
Dushyant Kumar
.....Petitioner
versus
State of Haryana and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr. Ashwani Talwar, Advocate for the petitioner
..
SANJAY KISHAN KAUL, CHIEF JUSTICE: (Oral) The petitioner was elected as a Member of the Municipal Corporation, Panipat/respondent No.4 along with other Members in the elections held on 2.6.2013, the result of which was declared on 4.6.2013. Twenty-four elected members, in turn, elected respondent No.5 as the Mayor on 3.7.2013 who assumed office on 4.7.2013.
Just after a period of six months, some of the elected Members appear to have had a change of heart and wanted to remove respondent No.5 from the post of Mayor and, thus, moved a no- confidence motion with request to the Commissioner/respondent No.3 to call a meeting for the said purpose.
The meeting was, however, not called in view of the provisions of Rule 75 of the Haryana Municipal Corporation Election Rules, 1994 framed under The Haryana Municipal Corporation Act, 1994 as Chand Parkash 2014.03.07 14:07 I attest to the accuracy and integrity of this document CWP-3595-2014 -2- there is a bar to calling a meeting for such a no-confidence motion during the first year of the elected period of the Mayor.
It may, however, be added here that the petitioner had earlier filed CWP No.1039 of 2014 aggrieved by the meeting not being called, but withdrew the same on 22.1.2014 where it was observed that respondent No.5 may examine whether Rule-75 of the said rules was attracted in view of the requisition made. It is pursuant thereto that the respondent No.3 passed an order that in view of the said Rules no meeting could be called.
The petitioner being one such Member, who had moved no- confidence motion, now has filed the present writ petition under Article 226 of the Constitution of India seeking to assail the vires of the rules.
Learned counsel for the petitioner seeks to refer to the provisions of Article 243-R of the Constitution of India providing for the composition of the municipalities. Sub-clause (2)(b) of the said Article authorises the legislature of the State by law to provide for the manner of election of the chairperson of the municipality. We, thus, posed to learned counsel for the petitioner as to how by the aforesaid act impugned of not calling a meeting is there a violation of the provisions of this clause of the Article. It is fairly conceded that really it could not be said to be a violation of any provision of the Constitution of India as the clause only authorises the legislature to provide for the manner of the election of the chairperson of the municipality and, thus, it is the legislature which should do the needful under the provisions of the relevant Act.
Chand Parkash 2014.03.07 14:07 I attest to the accuracy and integrity of this document CWP-3595-2014 -3-
Now turning to the relevant Act, the complete process is prescribed for election of a Mayor, Senior Deputy Mayor, Deputy Mayor as also the term of office under Section 36, which reads as under:-
"36. Election of Mayor, Senior Deputy Mayor, Deputy Mayor and their term of office.--(1) The Corporation shall elect one of its elected members to be Mayor for such period and in the manner as may be prescribed and the member so elected shall become Mayor of the Corporation:
Provided that if the office of Mayor is vacated during his tenure on account of death, resignation or no confidence motion, a fresh election within a period of one month of the vacancy shall be held from the same category, for the remainder period.
(2) The Corporation shall also elect in the manner prescribed, two of its elected members to be the Senior Deputy Mayor and Deputy Mayor, The term of office of the Senior Deputy Mayor and Deputy Mayor shall be for a period of five years or for the residue period of their offices as a member, whichever is less:
Provided that if the office of the Senior Deputy Mayor or Deputy Mayor is vacated during his tenure on account of death, resignation or no confidence motion, a fresh election for the remainder period shall be held within one month of the vacancy.
(3) The Mayor shall be entitled to the payment of such honorarium and may be given such facilities in respect of residential accommodation, telephone, conveyance and the like as may be prescribed.
(4) The Mayor shall have access to the record of the Corporation and may issue directions to the Commissioner or call for reports from him with a view to ensure proper implementation of the decision of the Corporation."
As far as removal from the post is concerned, Section 37 reads as under:-
"37 Removal of Mayor, Senior Deputy Mayor and Deputy Mayor.- A member holding office as Mayor or Senior Deputy Mayor or Deputy Mayor may be removed from his office by a resolution of the Corporation passed by a majority of not less than two-thirds of the elected members of the Corporation, in the manner as may be prescribed."Chand Parkash 2014.03.07 14:07 I attest to the accuracy and integrity of this document CWP-3595-2014 -4-
It may be noted that two-third elected members have to move a resolution for removal from office "in the manner as may be prescribed." The manner, in turn, has thereafter been prescribed as per the said rules.
Now turning to the rules, Rule-75 being the relevant rule reads as under:-
"75. Removal of Mayor, Senior Deputy Mayor and Deputy Mayor.- (1) The Divisional Commissioner, on written requisition made by at least 1/3rd of the total members of the Corporation, on his satisfaction, shall convene a meeting by giving not less than fourteen days clear notice in writing to consider the requisition.
(2) A member holding office as Mayor or Senior Deputy Mayor or Deputy Mayor shall be removed from his office by a resolution of the Corporation passed by a majority of not less than two third of the total members of the Corporation by voting by ballot.
(3) The Divisional Commissioner shall record and sign the resolution in the Proceeding Book of the Corporation.
(4) The Divisional Commissioner shall have no right to vote at such a meeting:
Provided that no meeting for the purpose shall be convened before the expiry of one year from the date on which the election of the Mayor or Senior Deputy Mayor or Deputy Mayor, as the case may be, was notified, and after the expiry of such period, whenever such a meeting is convened during his term of office and the proposal for vacating the office falls, no further meeting shall at any time thereafter be convened for considering a similar proposal against Mayor or Senior Deputy Mayor or Deputy Mayor unless a period of at least six months intervenes between the last failure and the date on which such further meeting is convened."
The grievance of the petitioner is really with the first part of the proviso after sub-rule (4) of Rule-75 of the said rules. There are two restrictions provided - (i) that the no-confidence motion will not be entertained for a period of one year after the election and (ii) that once such a motion is considered, the second motion will not be considered for a period of six months thereafter.
Chand Parkash 2014.03.07 14:07 I attest to the accuracy and integrity of this document CWP-3595-2014 -5-
Learned counsel for the petitioner states that the second part of the proviso takes its colour from the manner in which the proceedings are held in Parliament, but there was no need for providing the first part of the proviso. It is his submission that enough safeguard has been made by requiring a two-third majority to move such a no-confidence motion.
In our view, the aforesaid being statutory rules and authority being vested under Section 37 of the said Act, it is not for the petitioner to choose as to how the rules should be drafted. The legislature in its wisdom has considered a dual safeguard. The first part of the safeguard is neither in conflict with any other part of the said rules nor violative of the provisions of the said Act nor any part of the Constitution of India. This can, thus, hardly be declared ultra vires.
We may also note that the provisions of the rules are salutary in character so as to provide stability in the democratic system. Once the Members in their wisdom have elected a person as a Mayor, a minimum time period is prescribed within which he must be permitted to operate before any endeavour is made to non-suit him. The objective also appears to be to prevent unnecessary horse trading continuously by inserting two parts of the proviso.
It appears that after electing respondent No.5 to the post, the elected representatives like the petitioner are not even willing to wait for the period of a year to elapse before trying to seek some other arrangement to be brought into force.
Chand Parkash 2014.03.07 14:07 I attest to the accuracy and integrity of this document CWP-3595-2014 -6-
The rule has withstood the test of time since it was brought in by an amendment in 2009 for the last almost five years. It is only because the petitioner and such other Members now find the rule as an obstruction that they seek to challenge the same as part of their last ditch effort.
We find the petition as completely devoid of any merit or substance.
Dismissed.
( SANJAY KISHAN KAUL )
CHIEF JUSTICE
06.03.2014 ( ARUN PALLI)
parkash* JUDGE
√
Whether reportable: YES/NO
Chand Parkash
2014.03.07 14:07
I attest to the accuracy and
integrity of this document