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2014 DIGILAW 1331 (PNJ)

Baldev Krishan Mittal v. State of Haryana

2014-09-23

RAJAN GUPTA

body2014
JUDGMENT Mr. Rajan Gupta, J.: - This order shall dispose of two writ petitions i.e. CWP No.20916 of 2013 and CWP No.22358 of 2013, filed before this court posing a challenge to election of Sushila Rani respondent No.7, as Member of Municipal Committee, Kalayat. 2. Election of Sushila Rani respondent No.7 has been assailed on the ground that she failed to take oath within a period of three months of notification of election of members of Municipal Committee, Kalayat. In view of provisions of Section 24 of the Haryana Municipal Act, 1973, her election needs to be set-aside. 3. Plea has been opposed by learned counsel appearing for respondent No.7. According to him, there is no substance in plea of the petitioner that election of respondent No.7 can be challenged by way of a writ petition before this court. 4. I have heard learned counsel for the parties and given careful thought to the facts of the case. 5. It appears, election to 13 wards of Municipal Committee, Kalayat were held on 20.2.2013. After the elections, a notification dated 04.03.2013 was issued declaring 13 candidates as elected from different wards. On 29.3.2013, a meeting of the Municipal Committee was convened as per Rule 70 of the Haryana Municipal Election Rules, 1978 (hereinafter referred to as “the Rules”). Eight members were present and were administered oath of allegiance. Petitioner was not present in this meeting despite notice. According to stand of the State before this court, another meeting of the Municipal Committee was held on 2.5.2013. Notice of this meeting was also received by respondent No.7. Notice was served in view of Rule 70 of the Rules. On 2.5.2013, four members turned up to take oath. Respondent No.7 was again not present during the meeting. On 13.6.2013, respondent No.7 moved an application before Sub Divisional Officer (Civil), Kaithal requesting that she be administered oath as member of Municipal Committee, Kalayat. S.D.O. (Civil) sought clarification from the Deputy Commissioner with regard to request of respondent No.7. Deputy Commissioner asked the Sub Divisional Officer (Civil) to act as per Rule 70 of the Rules. Thereafter respondent No.7 was called to the office of Sub Divisional Officer (Civil) on 30.7.2013 and administered oath of allegiance. S.D.O. (Civil) sought clarification from the Deputy Commissioner with regard to request of respondent No.7. Deputy Commissioner asked the Sub Divisional Officer (Civil) to act as per Rule 70 of the Rules. Thereafter respondent No.7 was called to the office of Sub Divisional Officer (Civil) on 30.7.2013 and administered oath of allegiance. Action of respondent No.6 in administering oath to respondent No.7 is under challenge primarily on the ground that it was beyond the period of three months prescribed in Section 24 of the Haryana Municipal Act, 1973 and administration of oath to petitioner on 30.7.2013 was invalid being violative of Rule 70 of the Rules as no meeting of Municipal committee was convened on 30.7.2013. Section 24 of the Act reads as under:- “24. Notification of elections and nominations.-- (1) election or nomination of a member and election of a president of a Municipal Committee or Municipal Council shall be notified in the Official Gazette and no member shall enter upon his duties until his election or nomination has been so notified and until, notwithstanding anything contained in the Oaths Act, 1969, [elected member has taken or made], at a meeting of the Municipal Committee or Municipal Council an oath or affirmation of his allegiance to India and the Constitution of India in the following form, namely:- “I, AB, having been elected (--) member of a Municipal Committee or Municipal Council of ___ do solemnly swear (or affirm) that I will be faithful and bear true allegiance to India and the Constitution of India as by law established and I will faithfully, discharge the duties upon which I am about to enter.” (2) Every election of a member shall be notified in the Official Gazette by the State Election Commission not earlier than one week before the expiry of the duration of the existing municipality. Every election of a President shall be notified by the State Government in the Official Gazette within thirty days from the date of declaration of the result of such election: Provided that notification regarding bye-election results shall be published in the Official Gazette by the State Election Commission forthwith.) (3) If any such person omits or refuses to take or make the oath or affirmation as required by sub-section (1) within three months of the date of notification of his election, his election shall be deemed to be invalid for any reason which it may consider sufficient unless the State Government, extends the period within which such oath of affirmation may be taken or made. (4) If an election is deemed to be invalid under the provisions of sub-section (3), a fresh election will be held.)].” 6. A perusal of the aforesaid section leaves no room for doubt that every elected candidate has to take oath or affirmation of allegiance within three months of the date of notification. In the instant case, election was held on 20.2.2013 and was notified on 4.3.2013. Thereafter, first meeting of the Municipal Committee was convened on 29.3.2013, wherein eight members were administered oath as per the Act and Rules made thereafter. Another meeting of the Municipal Committee was called on 2.5.2013, wherein four members turned up and were administered oath. Though notice of both these meetings was served on respondent No.7, she remained absent. Ultimately, she was administered oath on 30.7.2013 in the office of Sub Divisional Officer (Civil), Kaithal. According to stand of the petitioner, this exercise was conducted without issuing notice to other members as required under Rule 70 of the Rules. A perusal of reply filed by the State (para 7) shows that notice dated 29.7.2013 was sent to respondent No.7 and oath was administered on 30.7.2013. There is no denial to the assertion that notice of the meeting was not served on other members as required by the Rules. Relevant part of Rule 70 reads as under:- “70. A perusal of reply filed by the State (para 7) shows that notice dated 29.7.2013 was sent to respondent No.7 and oath was administered on 30.7.2013. There is no denial to the assertion that notice of the meeting was not served on other members as required by the Rules. Relevant part of Rule 70 reads as under:- “70. Oath of allegiance and election of President etc.- (1) The Deputy Commissioner or any gazetted officer appointed by him in this behalf shall within a period of thirty days of the publication of the notification of the names of the members elected to a committee, convene the first meeting of the newly constituted committee at forty-eight hours notice to be delivered at their ordinary place of residence. The notice shall clearly state that the oath of allegiance will be administered to the members present and that the election of the President and Vice-President shall be held in the meeting. The convener shall administer the oaths to the members and shall preside over the meeting till the election of the President and the Vice-President. Such meeting shall be deemed to be validly convened meeting of the committee. Notwithstanding anything contained in any bye-laws made under the provisions of section 31 of the Act, the administration of oath of allegiance and the election of the President and Vice-President shall be recorded as part of the proceedings in the minutes of the meeting. (2) The oath of allegiance shall be administered to a member who was not present at the meeting convened under sub-rule (1) or to a member elected or nominated to fill a casual vacancy subsequently by the Chairman of the meeting at which such member appears to take such oath.” 7. It appears, petitioner was administered oath in violation of the Act and Rules. Admittedly, respondent No.7 never turned up for meetings of the Municipal Committee held on 29.03.2013 and 02.05.2013 despite notice served on her. She made a request to the Sub Divisional Officer, Kaithal vide her letter Annexure R-2 dated 13.6.2013 that she be administered oath of allegiance. This application was accepted and respondent No.7 was administered oath on 30.7.2013. There is nothing on record to show that notice of this meeting was served on other members as provided under Rule 70 of the Rules. This application was accepted and respondent No.7 was administered oath on 30.7.2013. There is nothing on record to show that notice of this meeting was served on other members as provided under Rule 70 of the Rules. It appears, respondent No.7 merely attended the office of Sub Divisional Officer (Civil) and took oath. No meeting of the Municipal Committee was fixed on this date. There is nothing to show that 48 hours notice, as required by Rule 70 of the Rules, was served on all members of the committee. Besides, petitioner was administered oath after lapse of period of three months of date of notification. According to Section 24 (3) if a person omits or refuses to take oath or affirmation within three months of the date of notification, his election would be deemed to be invalid. Even request of the petitioner dated 13.6.2013 showing her willingness to take oath is beyond three months. If oath is not taken in the prescribed manner and within the time period prescribed, such oath would be no oath in the eyes of law. A municipal councillor cannot choose time, place, and manner in which he would take oath. In view of statutory provisions, the issue of taking oath cannot be left to whims and fancies of elected representatives. There is substance in the plea of the petitioner that no meeting of the committee was convened on 30.7.2013. I, thus, find merit in the stand of the petitioner and hereby quash the election of respondent No.7 as member of Municipal Committee, Kalayat from Ward No.9. It being a case of statutory violation, prayer of the petitioner is in the nature of quo warranto. Thus, the stand of the private respondent that her election can be challenged only by way of election petition, is untenable and is rejected as such (See Sharju Vs. State Electricity Commission, AIR 2003 Kerala 246). 8. Both the petitions are allowed in above terms. ------------------