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Himachal Pradesh High Court · body

2004 DIGILAW 84 (HP)

SARDAR JASVINDER SINGH v. STATE OF H. P.

2004-04-29

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J.—Petitioners have filed this writ petition challenging the order of respondent No. 1 as contained in Annexure P-4, dated 5.7.2003. All of them were nominated as councillors to Municipal Corporation, Shimla under Section 4(3) of the Himachal Pradesh Municipal Corporation Act, 1994, vide notification dated 10.10.2002, Annexure P-l. Vide Annexure P-4, it was ordered that the petitioners shall cease to hold the office as councillor of the said Corporation, with immediate effect. 2. At the time of hearing of this writ petition, learned Counsel for the parties were not at variance that the amendment carried out to Section 4 of the Himachal Pradesh Municipal Corporation Act, 1994 vide H.P. Ordinance No. 3 of 2003 (Annexure P-2), has been incorporated in the said Act vide the Himachal Pradesh (Amendment) Act, 2003, i.e. Act No. 6 of 2003. For ready reference, portion of this Act which is relevant for determination of the present writ petition is extracted hereinbelow:— "(3-A) The State Government may, by notification, nominate as Councillors not more than three persons, having special knowledge or experience of municipal administration: Provided that a person who contested and lost the immediately preceding election of any Corporation shall not be nominated by the State Government as a Councillor of that corporation or any other Corporation during its existing term: Provided further that a Councillor nominated under this sub-section whether before or after the commencement of the Himachal Pradesh Municipal Corporation (Amendment) Act, 2003 shall hold office during the pleasure of the State Government, but not beyond the term of Corporation as provided for in sub-section (1) of Section 5 of this Act. (3-B) The nominated Councillors referred to in sub-section (3-A) and the Commissioner shall have the right to attend all the meetings of the Corporation and to take part in the discussion therein but shall not have any right to vote." 3. Mr. Sharma, learned Counsel for the petitioners submitted that duration of the Municipal Corporation under Section 5(1) of the Himachal Pradesh Municipal Corporation Act, 1994 (hereinafter referred to as "the Act"), is five years from the date of its first meeting, unless dissolved sooner under Section 404 thereof. According to him, this tenure is prescribed under Article 243-U of the Constitution of India. In the context of Annexure P-4, Mr. According to him, this tenure is prescribed under Article 243-U of the Constitution of India. In the context of Annexure P-4, Mr. Sharma pointed out that none of his clients had incurred disqualification under Section 8 of the Act, so as to enable respondent No.1 to order their removal under Section 34 thereof. Alternatively and without conceding, he further pointed out that in case Section 34,of the Act was to be invoked by the said respondent, in such a situation, show cause notice having not been issued, therefore, by necessary implication, respondent No.1 admits that it is not the case of removal of the petitioner under Section 34 of the Act. 4. Another argument urged by Mr. Sharma, was that the tenure of his clients as members of Municipal Corporation, Shimla is co-terminus with the term of the elected members of the Corporation or other nominated members who are members of House of People, members of Council of States, members of the Legislative Assembly and members of the Legislative Council, as per provisions of Section 4 of the Act. He argued that the tenure of his clients as members of Municipal Corporation is akin to that of the members of Rajya Sabha. The Act is in the nature of delegated legislation under Chapter-IXA of the Constitution of India, as such tenure fixed by the Constitution of India, cannot be curtailed and in no case, tenure of the house of Municipal Corporation under the Act, 1994 can be curtailed by the State Legislature in the face of the provisions of Article 243-U of the Constitution of India. In the alternative and again without in any manner conceding or giving up the claim of his clients, he further submitted that the provisions of Act No. 6 would apply prospectively. Therefore, it cannot affect the rights of the nominated members like the petitioners in this writ petition. On this ground also, per him, the impugned order is liable to be set aside, 5. All these pleas have been controverted by Mr. Chandel, learned Advocate General on behalf of respondent No.1. Per him nominated members like the petitioners, cannot claim parity so far the rights/privileges as available to the other category, i.e. the elected members as well as those nominated under Section 4 (2) (i)(b) and (c). All these pleas have been controverted by Mr. Chandel, learned Advocate General on behalf of respondent No.1. Per him nominated members like the petitioners, cannot claim parity so far the rights/privileges as available to the other category, i.e. the elected members as well as those nominated under Section 4 (2) (i)(b) and (c). According to him, in view of the Ordinance (which is substituted by Act No. 6 of 2003), it is evident that no stigma is cast on the petitioners on their removal. Parliament as per provisions of Chapter-IXA of the Constitution of India required enactment of law by the State. Needful has been done by enacting the Act. Per him, the amended provision in no way is in conflict with any of the provisions of the Constitution of India, much less Article 243-R thereof. According to him, this provision prescribes duration of municipalities to be five years. Whereas under Article 243-R, power is given to Legislature of a State, by law to provide for representation in municipalities of persons having special knowledge or experience in municipal administration; and of the members of the House of People, members of the Legislative Assemblies of the State representing constituencies which comprise wholly or partly municipal area, as well as members of the Council of States and members of Legislative Assembly of the State registered as elector within the Municipal area. Chairpersons of the committees constituted under Article 243-S of the Constitution of India can also be given representation in the municipality. For ready reference, Article 243-R and Article 243-U(l) of the Constitution of India are being extracted hereinbelow :— "243-R. Composition of Municipalities.—(1) Save as provided in clause (2), all the seats in a Municipality shall be 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 Chairperson of the Committee constituted under clause (5) of Article 243-S : 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. 243-U. Duration of Municipalities, etc.—(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date of appointed for its first meeting and no longer : Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2)................................................................................................................. (3) ................................................................................................................. (4).............................................................................................................." 6. A perusal of the provisions of Article 243-R of the Constitution of India clearly indicates that persons nominated under Article 243-2(a)(i) have been deprived of the right to vote in the meetings of the municipality. All other categories under the aforesaid sub-article (2) have not been deprived of such a right. 7. This clearly indicates that within the class of members under Article 243-R-2, a further class has been carved out of the nominated members without any right to vote. Whereas to other elected members of the House of People, Legislative Assemblies, Council of States and members of Legislative Council, Chairpersons of the Committees, have not been in any manner affected. Carving out of a class within the class, (as in the present case), is permitted by the Constitution, provided it has a reasonable nexus with the object sought to be achieved. Purpose of this, appears to be, that it is the only elected members whether to the Municipal Corporation or to other institutions as referred to hereinabove, will only have a right to cast their votes. 8. Purpose of this, appears to be, that it is the only elected members whether to the Municipal Corporation or to other institutions as referred to hereinabove, will only have a right to cast their votes. 8. What follows from this is that the term of five years prescribed under Article 243-U, supra, as well as Section 5(1) of the Act, is also applicable only in a case of elected members and not in case of nominated members, like petitioners. 9. Here another important facet of this case needs to be noted. It is that so far legislative competence of the State Legislature to have enacted Act No. 6 of 2003 is concerned, it was not disputed at the time of hearing of this writ petition. Only argument challenging the action of respondent No. 1 in terms of Ordinance No. 3 of 2003 and now to Act No. 6 of 2003, was, that it is colourable exercise of powers by respondent No.1 while issuing the impugned notification to the effect that the petitioners shall cease to be the councillors of Municipal Corporation, Shimla with immediate effect in terms of Annexure P-4. Therefore, the plea urged on behalf of the petitioner that their terms is co-terminus like other elected members, cannot be accepted. Consequently, the plea of the petitioners having incurred not any disqualification under Section 8 of the Act enabling respondent No.1 to remove them under Section 34 thereof, does not arise. Reason for taking this view is that admittedly, respondent No.1 has not set up such a case while issuing Annexure P-4 under any of these provisions. 10. As a corollary of this discussion, there was no need for issuance of show cause notice under Section 34 of the Act, before removal of the petitioners as nominated Councillors to the Shimla Municipal Corporation. 11. So far plea urged on behalf of the petitioners that their term is akin to those of nominated members of Rajya Sabha is concerned, again it cannot be upheld. In this behalf, when a reference is made to the provisions of Article 80 of the Constitution of India, it only speaks of 12 members to be nominated under clause (3) of this Article. In this behalf, when a reference is made to the provisions of Article 80 of the Constitution of India, it only speaks of 12 members to be nominated under clause (3) of this Article. What is to be their term and whether they can vote or not, at least no provision from the Constitution or elsewhere, has been pointed out to me by learned Counsel for the petitioners. This is a major distinguishing feature so far members of Rajya Sabha, i.e. Council of States and nominated members to the Municipal Corporation are concerned. As such, no benefit can be derived by the petitioners by referring to Article 80 of the Constitution of India. 12. Another argument that needs consideration here is, that both under the original Act as it stood prior to its amendment vide Act No. 6 of 2003 and thereafter; only nominated members have not been given right to vote in the meeting of the Municipal Corporation. To say that for all purposes including for calculating their tenure, they have to be at par with the elected members, will not be correct. By means of amending Act, only doctrine of pleasure has been invoked by the State Government enabling it only to curtail the term of the nominated members under Section 4(2)(i) of the Act to the Municipal Corporation. Now, it is provided under the amended provision that the nominated councillors shall hold office during the pleasure of the State Government, but not beyond the term of the Corporation as provided under Section 5(1) of the Act. Not only these nominated Councillors, but even the Commissioner of the Municipal Corporation has also been given a right to attend all the meetings of the corporation. They can participate in the discussion, but has no right to vote. It is not the petitioners alone, but the commissioner of the Corporation who has also been put at par along with them. They can participate in the discussion, but has no right to vote. It is not the petitioners alone, but the commissioner of the Corporation who has also been put at par along with them. For the view that has been taken creating a class within the class of the members of the Municipal Corporation, i.e. of the ones elected to the Municipal Corporation; others of elected as members of the Council of the States, members of the Legislative Assembly, members of the Council of States, as well as of Legislative Council, also the legislative competence of the State Legislature being not in dispute, to say that amending Section 4 of the Act of 1994 will be prospectively applicable, will also not be correct and on this basis, it is held that the term of nominated members is to be at the pleasure of the Government and not like that of the elected members, as was urged on behalf of the petitioners. 13. Act No. 6 of 2003 was within the legislative competence of the Legislature as noted hereinabove. Mala fides cannot be attributed to the Legislature. Thus, the plea that it is colourable exercise of the powers by respondent No.1 in issuing Annexure P-4, must also fail. 14. In view of the discussion hereinabove, it is felt that there was no need for issuance of the show cause notice and or to have followed the principles of natural justice before issuance of Annexure P-4 in the face of Himachal Pradesh Municipal Corporation Ordinance No.3 of 2003 followed by H.P. Municipal Corporation Act No. 6 of 2003. View that has been taken on the basis of examination of different provisions of the Municipal Corporation Act, 1994 before its amendment, and then after its amendment vide Act No. 6 of 2003, and keeping in view the different provisions of the Constitution of India, case law cited by learned Counsel for the parties, is not being noted. 15. No other point is urged. 16. In view of the aforesaid discussion, there is no merit in this writ petition, which is accordingly dismissed. All interim orders passed from time to time in this writ petition shall stand vacated. Pending application, if any, shall stand disposed of. No costs. Writ petition dismissed.