Himachal Pradesh High Court
Madhu Sharma & Anr vs Respondents/Non-Applicants on 19 July, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP No. 3917 of 2018 and CMP No. 3918 of 2018 in CWP No.1831 of 2017.
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Reserved on : 10.07.2018.
Date of Decision: 19th July, 2018.
1. CMP No. 3917 of 2018 Madhu Sharma & Anr. ..Petitioners/Non-applicants State of H.P. & Ors.
Anita Sood & others Versus ..Respondents/Non-applicants.
.....Applicants.
2. CMP No. 3918 of 2018.
Madhu Sharma & Anr. ..Petitioners/Non-applicants Versus State of H.P. & Ors. ..Respondents/Non-applicants.
Anita Sood & others .....Applicants.
Coram The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Petitioners: Mr. Ajay Sharma, Advocate. For Respondents No. 1 to 4: Mr. Hemant Vaid, Addl.
A.G. with Mr. Y.S. Thakur & Mr. Vikrant Chandel, Dy. A.Gs.
::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 2For Respondent No. 5: Mr. Sunil Mohan Goel, Advocate.
For Respondent No.6: Mr. Kishore Pundir, Advocate.
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For the Applicants: Mr. Nimish Gupta, Advocate.
Sureshwar Thakur, Judge.
The petitioners herein, cast, a challenge upon Annexure P-5, whereunder, the Sub-Divisional Officer (Civil), Baijnath, District Kangra, H.P., had, directed the convening, of, a special meeting, of, elected members of the Nagar Panchayat, Baijnath Paprola, on 14.08.2017 at 11 a.m., in the Meeting Hall of SDM Office, Baijnath, (a) for, the apt No Confidence Motion, brought against the President/Vice President of Nagarh Panchayat Baijnath-
Paprola, being deliberated, upon, by all the elected members of the Nagar Panchayat Baijnath-Paprola, all whereof, were requested, to, attend the aforesaid meeting. 2. The gravaman, of the onslaught cast, upon, the validity of the Annexure P-5, is, grooved in respondent No.6, Amit Kumar, at the time of his furnishing, his nomination papers, his making a false declaration, (a) falsity whereof, is contended to be sparked, by, despite charges, vis-a-vis, his committing offences under Section ::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 3 420, 406, 467, 468, 471 and 120-B of the IPC, being framed against him, his therein rather concealing the aforesaid factum, (b) thereupon, it is contended that his .
not holding, the, requisite capacity to participate, in, the apt No Confidence Motion. (c) When on 11.08.2017, CWP No. 1831 of 2017, was, listed before the Hon'ble Principal Division Bench of this Court, thereat upon, CMP No.6703 of 2017, the Hon'ble Division Bench, of, this Court, was pleased to stay the operation, and, execution of Annexure P-5. Even though, Annexure R-5/3, appended with the apt reply furnished by respondent No.5, hence makes a clear depiction (i) qua the matter appertaining to FIR No.79 of 2009, being subjudice before the JMIC, Baijnath, (ii) thereupon, with, the aforesaid disclosures, hence, occurring, in, Annexure R-5/3, they do obviously hence prima facie oust, the vigour, of, the contention reared by the learned counsel appearing for the petitioners, qua the respondent No.6 making, any, active concealment, vis-a-
vis, the apt charges standing framed against him. Yet apart from this Court, hence, dispelling the aforestated contention reared before this court, by the learned counsel appearing for the petitioner, for his hence, striving to render ineligible, the participation, of, respondent No.6, in, ::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 4 the apt deliberations to be made, upon, the No Confidence Motion, (iv) an inference, qua, the apt striving(s), of, the counsel for the petitioner, otherwise also being bereft of .
any merit, is, garnered from the mandate, of, Section 296 of the Himachal Pradesh Municipal Act, provisions whereof stand extracted hereinafter:-
"296. Grounds for setting aside election. (1) If the authorised officer is of the opinion-
(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act;
or
(b) that any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns the elected person, has been materially affected-
(i) by the improper acceptance of any nomination; or
(ii) by improper reception, refusal or rejection of any vote or the reception of any vote which is void; or
(iii) by any non-compliance with the provisions of this Act or of any rule made under this Act;
::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 5the authorised officer shall set aside the election of the elected person.
(2) When an election has been set aside under sub-section (1), a fresh election shall be held."
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(v) provisions whereof, are, rather available for recourse thereto by the petitioners, for, hence theirs, within, the ambit of provisions thereof, hence striving, to, set aside the election, of, respondent No.6. However, the aforesaid endeavours, also evidently remained unstrived, by the petitioners, hence, prima facie at this stage, they cannot contend, that the purported false declaration made by respondent No.6, at the time, of, his filing, his nomination papers, per se, rendering him, ineligible, to participate in the requisite deliberation(s). (vi) More so, when his non participation therein, enjoins qua prior thereto, his elections being set aside, election(s) whereof apparently, is yet not, concerted to be set aside, by the petitioners, by theirs resorting, to the provisions, borne in, Section 296 of the Himachal Pradesh Municipal Act.
3. Be that as it may, even if, assumingly, respondent no. 6 is prima facie barred to participate, in the requisite deliberation(s), (a) yet with six members, amongst, the 11 elected members of the Nagar Panchayat, Baijnath-Paprola, instituting before this Court, CMP No. ::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 6 3917 of 2018, wherein they espouse qua their impleadment, in CWP No. 1831 of 2017, as respondents, in the array of respondents, being imperative, theirs being .
both necessary and property parties, for, hence aborting the petitioners' endeavour, to, scuttle the apt democratic processes, (b) thereupon, hence when, they constitute a majority of elected members, to the Nagar Panchayat, Baijnath-Paprola, (c) besides when they also explicitly express therein, qua, the execution of public works hence suffering collapse or damage, on account of inability(ies) of the Vice President, and, President of the Nagar Panchayat, Baijnath-Paprola, (d) and, concomitantly, also when they express qua it being imperative, for, this Court to permit them, to be impleaded, as, party respondents, in the array of respondents, (e) for thereafter, theirs espousing qua this Court hence proceeding, to, upon CMP No.3918 of 2018, instituted before this Court by them, pronounce an order, for, vacating the orders pronounced, on 11.08.2017 upon CMP No.6703 of 2017, (f) thereupon, this Court, deems it fit and appropriate, to allow, CMP No.3917 of 2018, and, hence the applicants are permitted, to be arrayed, as party respondents in CWP No.1831 of 2017.
::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 74. However, at this stage, the learned counsel appearing for the petitioners/non-applicants, has contended with much vigour, before this Court, (i) that this .
Court may not proceed to pass any order on the aforesaid applications, as, the consequence thereof, would be, this Court, hence proceeding to interfere with the executive powers, of the Sub Divisional Officer (Civil), Baijnath, (ii) whereas the latter, dehors any judicial diktat being rendered, his being yet competent, to table, for deliberation, any No Confidence Motion, as proposed to be brought against the President or the Vice President of the Nagar Panchayat, Baijnath-Paprola, (iii) besides he contends that the staying of operation of Annexure P-5, being limited in duration, and, also sway thereof, holding clout, only, for a day i.e. 11.08.2017. However, the aforesaid contention, cannot be assigned, any sustenance,
(iv) as, a, reading of Annexure P-5, and, also a reading, of, the order pronounced on 11.08.2017, upon, CMP No. 6703 of 2017, by the Division Bench of this Court, whereunder, the operation of Annexure P-5, stood hence stayed, (v) rather making a clear palpable display, and, importantly when both are read in conjunction, with, the onslaught cast by the petitioners, vis-a-vis, hence necessity, of, ::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 8 ouster from participation, of respondent No.6, in the requisite deliberations, onslaught whereof, prima facie, for the reasons ascribed hereinabove, is enjoined to falter, (vi) .
nor hence the purported disqualification, of, respondent No.6, to, participate in the relevant deliberations, hence constituting the relevant fact, for the aforesaid order being rendered, (vii) thereupon unless, the, aura of suspicion surrounding the purported disqualification, of respondent No.6 is erased, and, whereafter, respondent No.5 is permitted to participate, in the requisite deliberations, hence visibly, thereupto, the mandate, of this Court recorded on 11.08.2017, upon, CMP No.6703, whereat, the, operation of Annexure P-5 was stayed, rather remaining alive, hence, also thereupto the orders aforesaid rather fettering the apt powers of the Sub Divisional Officer (Civil), Baijnath, also remaining intact. Since, as aforestated, a majority of the elected members, of, the Nagar Panchayat, Baijnath-Paprola, have instituted CMP No. 3917 of 2018, wherein, they seek their impleadment, in the apposite array of respondents, whereon, for reasons aforesaid, an affirmative relief stands pronounced, (viii) thereupon, the democratic aspirations, of, the elected representatives, of the people, for, ensuring the proper ::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 9 management of the affairs of the Nagar Panchayat, Baijnath-Paprola, cannot be baulked. Moreso, when for satiating, the, apt valid democratic aspiration(s), directed .
towards, ensuring an appropriate management, of, the affairs of the Nagar Panchayat, Baijnath-Paprola, and, when for ensuring proper management whereof, the apt permission is required to be accorded qua the apt tabling, of, an apt No Confidence Motion against the President or Vice President, of, the Nagar Panchayat, Baijnath-Paprola, in, a convened meeting, of, elected members, of, the Nagar Panchayat, Baijnath Paprola, (b) and, theirs thereafter electing , a, new President and, a, Vice President, of, Nagar Panchayat, Baijnath-Paprola. It is the solemn duty of the Courts of law, to ensure, the smooth management, of, affairs of the Nagar Panchayat concerned, and, when a majority of the elected representatives, hence explicitly, express qua, its, affairs being mismanaged, for want, of, abilities, of, the President, and, the Vice President, all mismanagements whereof, are, espoused to be undone, through, recoursing valid democratic processes, (c) besides when the apt processes apparently, are, likely to beget success, given the majority of the elected members, of the Nagar Panchayat, ::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 10 Baijnath-Paprola, instituting, before this Court CMP No. 3917 of 2018, and, therein, theirs expressing with explicit candor, their aspiration, of, supporting the requisite No .
Confidence Motion. In aftermath, the apt democratic endeavours cannot be hence baulked.
5. As a corollary, for ensuring, qua the judicial fetter foisted, upon, the executive powers, of the Sub Divisional Officer (Civil), Baijnath, in convening, the meeting of the executive members, of, the Nagar Panchayat, Baijnath-Paprola, for theirs hence deliberating, upon, an apt No Confidence Motion, as is imminently, to be, sponsored, against, the President and the Vice President of the Nagar Panchayat, Baijnath-Paprola, (a) thereupon, its rigour, is, enjoined to be relaxed, and, hence the orders pronounced on 11.08.2017 upon CMP No. 6703 of 2017, are, vacated. In sequel, CMP No. 3918 of 2018 is allowed. Consequently, the Sub Divisional Officer (Civil) Baijnath, is, permitted to convene, a, meeting, of, the elected members of the Nagar Panchayat, Baijnath-
Paprola, for theirs, being enabled, to, sponsor, the, apt No Confidence Motion, against, the President and the Vice President, and, for ensuring qua thereafter deliberations thereon, hence occurring. However, the contesting ::: Downloaded on - 24/07/2018 23:00:35 :::HCHP 11 respondents, may not, till 25.07.2018, for, enabling the counsel for the petitioners, to, challenge this order, before the Principal Bench of this Court, hold, for the requisite .
purpose, the meeting, of, the apt elected members.
(Sureshwar Thakur)
19 th
July, 2018 Judge.
(jai)
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