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2004 DIGILAW 319 (HP)

BHARTIYA VALMEKI DHARAM SAMAJ v. STATE OF H. P.

2004-12-02

A.K.GOEL, V.K.GUPTA

body2004
JUDGMENT V.K. Gupta, CJ.) Oral: CMP No. 1839 of 2004. Infructuous. CWP No. 1083 of 2004. 2. In this petition filed under Articles 226 and 227 of the Constitution of India, the following reliefs have been sought by the petitioners :- (i) To declare words "and thereafter at the expiration of 21/4 years" in sub-section (1) of Section 36 and entire subsection (2) of Section 36 of the H.P. Municipal Corporation Act, 1994 amended by H.P. Municipal Corporation (Amendment) Act, 1997 ultra vires of the Constitution of India and the same may kindly be quashed after applying the principle of severability; (ii) by applying the principle of severability 2Vz years period fixed for election of Mayor in Notification Annexure P-3 dated 27.6.2002 may be quashed. (iii) Annexure P-5, notice of election dated 18/19.11.2004 may kindly be set aside, quashed; (iv) In case the respondents, during the pendency of above writ petition, succeed in holding the elections for the office of Mayor and Deputy Mayor of Municipal Corporation, Shimla, in pursuance of notice of election Annexure P-5, or otherwise, then such elections may also be set aside, quashed. (v) It may kindly be declared that persons elected as Mayor and Deputy Mayor of respondent No. 2-Municipal Corporation, Shimla on 3.6.2002 and notified as such on 27.6.2002 vide Annexure P-3 shall continue to hold their offices till the duration of present Corporation under Section 5 of the H.P. Municipal Corporation Act, 1994. (vi) Costs of this petition may kindly be awarded in favour of the petitioner No. 1. (vii)Any other order or direction, which this Honble Court deems just and proper may also be passed in favour of the petitioners and against the respondents. 3. Evidently, petitioners are not either members of Shimla Municipal Corporation or the holders of the office of Mayor or Deputy Mayor because by their self description, petitioner No. 1 is a Society registered under the Societies Registration Act and petitioner No. 2 is a Valmiki and a citizen of India as well as a voter of Municipal Corporation, Shimla, in Ward No. 11. Without ourselves being detained about the locus standi of the petitioners to maintain this petition, we proceed to examine the merits of this case on the basis of arguments put forth by Mr. Kuldip Singh, learned Senior Counsel appearing for the petitioners. 4. Without ourselves being detained about the locus standi of the petitioners to maintain this petition, we proceed to examine the merits of this case on the basis of arguments put forth by Mr. Kuldip Singh, learned Senior Counsel appearing for the petitioners. 4. Section 36 of the H.P. Municipal Corporation Act, 1994 (hereinafter to be referred to as "1994 Act") reads thus:- "36(1). The Corporation shall at its first meeting and thereafter at the expiration of every year, elect one of its Councilors to be the Chairperson to be known as the Mayor and another Councilor to be the Deputy Mayor of the Corporation: Provided that during the duration of the Corporation the office of the Mayor shall be reserved for the Scheduled Castes, Scheduled Tribes, and Women; by rotation or by lots in the manner prescribed; Provided further that where the population of any class of persons referred to in the foregoing proviso is less than fifteen per cent of the total population of the municipal area, the office of the Mayor shall not be reserved for that class. (2) The term of office of the Mayor and the Deputy Mayor of the Corporation shall be one year from the date of his election, as such, unless in the mean time he resigns his office as Mayor or Deputy Mayor or unless in the case of Deputy Mayor is elected as the Mayor and he shall cease to hold his office on the expiry of his term of office; Provided that if the office of the Mayor or Deputy Mayor is vacated or falls vacant during the tenure on account of death, resignation or non-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: Provided further that the election of the new Mayor or the Deputy Mayor, as the case may be, at the end of every term, shall be held before the expiry of the term specified in this subsection. (3) The Mayor and Deputy 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 by bye-laws. (3) The Mayor and Deputy 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 by bye-laws. (4) The Mayor of the Corporation shall have access to the record of the Corporation and issue directions to the Commissioner or other functionaries of the Corporation or call for reports from them with a view to ensuring proper implementation of the decisions of the Corporation. (5) The Mayor shall have such powers as may be necessary to carry out the purposes of this Act and to implement the decisions of the Corporation." 5. By H.P. Municipal Corporation (Amendment) Act, 1997, the period of one year as had originally been prescribed in Section 36(2) of 1994Act, was extended to 2½ years. 6. Section 5 of the 1994 Act clearly stipulates that the Corporation shall continue for a period of five years from the date appointed for its first meeting. Sub-section (1) of Section 5, which contains such a stipulation, being relevant for our purpose, is reproduced hereunder and reads thus:- "(1) The Corporation, unless sooner dissolved under Section 404 of this Act, shall continue for, five years from the date appointed for its first meeting." 7. Even though, therefore, the duration of the Corporation itself has been fixed at five years as per the aforesaid clear stipulation contained in Section 5, as far as the Mayor and Deputy Mayor of the Corporation are concerned, the term of their offices is limited to years (Refer Section 36(2) of 1994 Act). Mr. Kuldip Singh has drawn out attention to Article 243-U of the Constitution of India which lays down that every Municipality (the expression "Municipality" undoubtedly includes a Municipal Corporation as well) shall continue for five years from the date appointed for its meeting and no longer. Clause (1) of Article 243-U being relevant for this purpose is reproduced herein below:- "Article 243U(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." 8. Argument of Mr. Argument of Mr. Kuldip Singh is that Section 36(2) of the 1994 Act in so far as it prescribes a period of 214 years as the term of office for Mayor and Deputy Mayor is ultra vires Article 243-U which, according to Mr. Singh, prescribes a period of five years as the term of office for Mayor as well as Deputy Mayor. 9. A plain reading of Article 243U of the Constitution of India clearly suggests that the mandate contained in this Article is with respect to the duration of a Municipality alone for a period of five years from the date appointed for its first meeting and that the duration of the i Municipality itself cannot be treated as synonymous with the term of j office of either the Mayor or the Deputy Mayor or for that matter any other office holder in the said Municipality by whatever name it may be called for referred to. Yes, undoubtedly, since the Municipality comprises of its members and because the members constitute its soul as well as its body, it is inconceivable that the term of the elected members of a Municipality, by operation of any law can be made lesser than the duration (term) of the Municipality itself. Actually, the Municipality comes into being from the day the election of its members takes place, meaning thereby the moment the members of the Municipality, in a general election of the Municipality are elected, the Municipality comes into being arid its duration therefore, for a period of five years from the date of its first meeting, starts after such an election. Therefore, it is constitutionally impermissible that a member can be elected for a period less than the duration or the term of the Municipality itself. 10. The aforesaid principle, however, cannot be made applicable to any office holder or office bearer of the Municipality, whether by virtue of election or otherwise, because what Article 243U mandates is the duration of the Municipality, including its members (as the members of the Municipality) and not otherwise. 10. The aforesaid principle, however, cannot be made applicable to any office holder or office bearer of the Municipality, whether by virtue of election or otherwise, because what Article 243U mandates is the duration of the Municipality, including its members (as the members of the Municipality) and not otherwise. It is, therefore, open for any legislative enactment to prescribe any period for which the office bearers or the office holders of a Municipality, including the Mayor or the Deputy Mayor, shall hold office and if such a period is lesser than five years, such a legislative enactment cannot be termed as being ultra vires Article 243U of the Constitution. One reason of taking this view also is that the office holders or the office bearers or a Municipality, including a Mayor or a Deputy Mayor, even after they cease to hold such an office by virtue of the expiry of their terms as prescribed in such a law, do not cease to be the members of the Municipality. They continue to be the members of the Municipality for the remainder of the Municipalitys duration or term, of course, subject to other stipulations about such continuance, such as disqualification etc. etc., with which we are not concerned in this case. 11. In support of his argument, Mr. Kuldip Singh has relied upon a judgment of Patna High Court in C.W.J.C. No. 1019 of 2003; Bihar Mayor Council v. The Union of India and others, dated 4th September, 2003 (report in a Journal called as The All India Council of Mayor shown to us by Mr. Kuldip Singh), in which Ravi S. Dhawan, CJ (as he then was) has taken a contrary view with respect to the interpretation of Article 243-U and has held that the term of the Mayor should also be five years in consonance with the prescription contained, and the language employed in Article 243-U. With utmost deference, we respectfully disagree with the aforesaid view of Patna High Court. 12. The writ petition has no merit and is dismissed in limine, but without any order as to costs. CMP bio. 1038 of 2004 13. Infructuous in view of the order passed in the main matter.