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2018 DIGILAW 4790 (PNJ)

Dalip Kumar v. State Of Haryana

2018-12-19

A.B.CHAUDHARI, H.S.GILL

body2018
JUDGMENT Harnaresh Singh Gill, J. - C.M. No.16861 of 2018 Application is allowed. Rejoinder filed on behalf of respondent No.1 is taken on record. CWP No. 19822 of 2018 Rule. Rule heard with the consent for the rival parties. 2. By the present petition, the petitioners seek a writ of mandamus for directing the respondents to accord consent for conducting general election of the Municipal Council, Rewari. FACTS 3. In the present case, house of Municipal Council, Rewari was constituted in Year 2013. The first meeting of the house of the Municipal Council, Rewari was held on 19.03.2013. Thus, as per the provisions of Article 243-U of the Constitution of India and Section 12 of the Haryana Municipal Act, 1973 (for short, 1973 Act'), the State Election Commission was bound to conduct the election before 19.03.2018. The house of Municipal Council, Rewari was dissolved w.e.f. 19.03.2018 and Sub Divisional Officer (Civil), Rewari was appointed as Administrator of the Municipal Council by the Principal Secretary, Government of Haryana, Urban Local Bodies Department. 4. As per the stand taken by the State of Haryana, in its short reply by way of affidavit of Shri Shekhar Vidyarthi, Special Secretary to Government of Haryana, Urban Local Bodies Department, the constitution of adhoc committee and issuance of preliminary notification for the purpose of delimitation of the wards and final notification were according to the Rules 3, 4, 9 and 10, respectively, of Haryana Municipal Delimitation of Ward Rules, 1977. Further stand of the respondent No.1 in this case is that State Government has already issued the preliminary notification and objections/suggestions received against the preliminary notification were under process of examination and the final notification of wardbandi is to be issued in due process of law. It is not disputed that tenure of the elected body of Municipal Council was completed on 19.03.2018. It is further stated in the affidavit that Municipal Administration with the collaboration of Deputy Commissioner, Rewari are under process to complete the aforesaid survey and to complete the process, the department of answering respondent has taken various steps to expedite the matter for preparing the proposal of delimitation of wards of Municipal Council, Rewari. It is further stated in the affidavit that Municipal Administration with the collaboration of Deputy Commissioner, Rewari are under process to complete the aforesaid survey and to complete the process, the department of answering respondent has taken various steps to expedite the matter for preparing the proposal of delimitation of wards of Municipal Council, Rewari. It is further stated that State Election Commissioner, Haryana, vide notification dated 23.01.2018 proposed to take further action on the basis of existing delimitation of wards of Municipal Council, Rewari but the department has requested the State Election Commission that as process of survey of population of Municipal Council, Rewari is under process and moreover, due to the limit extension of Municipal Council, population/seats may be increased and fresh wardbandi is required. 5. It is also not disputed that Municipal Council, Rewari was constituted in year 2013 and first meeting of the house of Municipal Council was held on 19.03.2013. The State Election Commission/respondent No.2 was bound to conduct the election on or before 19.03.2018 i.e. before expiry of its duration. 6. As regards the stand taken by the State Election Commission/respondent No.2 in an affidavit through Dr. P.K. Sharma, Secretary, the general election of the Municipal Council, Rewari was required to be conducted before 19.03.2018 but because of noncompletion of wardbandi by the State Government and non-receipt of consent from the State Government, the election could not be conducted in time. It is the further stand of respondent No.2 that after every official census, the total number of seats of each committee/council is required to be fixed by the Government on the basis of latest census figures. 7. It is the specific stand of the State Election Commission/respondent No.2 that in view of constitutional responsibilities and provisions of Act and Rules, a letter dated 23.05.2014 was sent to the Government with a request to complete the work of redetermination of number of wards and reservation of seats or the re-delimitation of territorial limits of municipalities well before the expiry of duration, so that the Commission would be in a position to conduct the election of the municipalities in time. It is further the stand of respondent No.2 that several reminders in this regard were sent to the Government i.e. i) D.O. letter dated 15.12.2017; ii) Letter dated 23.01.2018; iii) Letter dated 02.02.2018; iv) Letter dated 19.02.2018; v) Letter dated 22.02.2018. ARGUMENTS 8. It is further the stand of respondent No.2 that several reminders in this regard were sent to the Government i.e. i) D.O. letter dated 15.12.2017; ii) Letter dated 23.01.2018; iii) Letter dated 02.02.2018; iv) Letter dated 19.02.2018; v) Letter dated 22.02.2018. ARGUMENTS 8. The learned counsel for the petitioners has argued that election of Municipal Council, Rewari was held in the year 2013 and the first meeting of the elected house was conducted on 19.03.2013. He has further argued that the respondents were bound to conduct and complete election before 19.03.2018. The House of Municipal Council, Rewari was dissolved w.e.f. 19.03.2018 and SDO (Civil), Rewari has been appointed as Administrator. 9. It is further argued that despite of the various reminders from the Election Commission/respondent No.2, the election of Municipal Council, Rewari has not been conducted which is against Section 12 of 1973 Act and against Article 243-U of the Constitution of India. 10. The specific contention raised by counsel for the petitioners is that since the house stands dissolved on 19.03.2018, it becomes incumbent upon the State Election Commission and other authorities to carry out the mandate of Constitution and see that newly elected body is constituted in time and the election of municipality is conducted before the expiry of its tenure of five years. 11. It is the common stand of the petitioners and respondent No.2 to conduct the election on old wardbandi. It is failure of the Government to grant consent for holding the election. 12. The arguments raised on behalf of respondent No.1 are that the State Government has already issued preliminary notification and objections/suggestions received against the preliminary notification are under process of examination and final notification of wardbandi will be issued soon. 13. It is argued by the counsel for respondent No.2/Election Commission that the election of the Municipal Council, Rewari was required to be conducted before 19.03.2019. But due to non completion of wardbandi and consent from the State Government, election could not be conducted. Learned counsel for respondent No.2 has further argued that State Government, vide memo dated 17.04.2018 has given nod to conduct election of 18 Municipal Councils and of two bye election in the State of Haryana except Municipal Council, Rewari. CONSIDERATION 14. We have heard counsel for the rival parties for quite some time and have perused the documents on file. 15. CONSIDERATION 14. We have heard counsel for the rival parties for quite some time and have perused the documents on file. 15. From the above facts, it is clear that last election of the Municipal Council, Rewari was conducted on 10.02.2013 and its first meeting was held on 20.03.2013. The election of the council was required to be conducted before 19.03.2018. 16. As per Section 12 of the 1973 Act, an election to constitute a municipality shall be completed before the expiration of period of six months from the date of its dissolution. Section 12 of the 1973 Act is reproduced hereunder for ready reference: "12. Duration of municipality, etc. - (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: Provided that a municipality shall be given a reasonable opportunity of being heard before its dissolution : Provided further that all municipalities existing immediately before the commencement of the Constitution (Seventy-fourth Amendment Act, 1992 shall continue till the expiration of their duration unless sooner dissolved by a resolution passed to that effect by the State Legislature. (2) An election to constitute a municipality shall be completed. - (a) before the expiry of its duration specified in subsection (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that when the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election under this section for constituting the municipality for such period: Provided further that the first election to a municipality constituted after the commencement of the Haryana Municipal (Amendment) Act, 1994, may be held within a period of one year of its being notified as a municipality: Provided further that elections to the municipalities where no elected body exists at the time of commencement of this Act may be held within a period of one year. (3) A municipality constituted upon the dissolution of a municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued under subsection (1) had it not been so dissolved. (3) A municipality constituted upon the dissolution of a municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued under subsection (1) had it not been so dissolved. (4) If a municipality is not reconstituted before the expiration of its duration laid down in sub-section (1), it shall be deemed to have been dissolved on the expiry of the said duration and, thereupon, provisions of sub-section (2) of section 254 shall be applicable." 17. The Constitution of India has also given a clear mandate regarding the duration of municipalities under Article 243-U which reads thus:- "243U. 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 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) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). (3) An election to constitute a Municipality shall be completed,- (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved." 18. As per Section 7A of the Haryana Municipal (Amendment) Act, 2018, the work related to delimitation and reservation of wards shall be completed six months before the completion of tenure of the Municipal Committee, failing which the State Election Commission shall go ahead with the process of preparing electoral rolls and conduct the election on the basis of existing delimitation and reservation of wards. Section 7A of the 1973 Act is reproduced hereunder:- "7A. Section 7A of the 1973 Act is reproduced hereunder:- "7A. Time limit for delimitation and reservation of wards - The work relating to the delimitation and reservation of wards of the municipal committee shall be completed six months before the completion of the tenure of municipal committee, failing which the State Election Commission shall go ahead with the process of preparation of electoral rolls and conduct of elections on the basis of existing delimitation and reservation of wards" It is clear that before a municipal council is dissolved, an election is to be conducted before the expiration of six months from the date of its duration. In the present case, when the Municipal Council was dissolved, SDO (Civil) was appointed as Administrator of the Municipal Council. Despite the clear correspondence made by the Secretary, State Election Commission, vide affidavit dated 31.10.2018, a number of reminders were given to the State Government to complete the work of re-determination of wards and reservation of the seats but to no use. It was also brought to the notice of the Government that election of the council can be conducted on the existing wardbandi to avoid unnecessary delay and litigation in the matter in order to fulfil the constitutional obligation. 19. The Hon'ble Supreme Court in the case of Kishansing Tomar vs. Municipal Corporation of City of Ahmedabad, AIR 2007 SC 269 has specifically laid down that the provision in the Constitution was inserted to see that there should not be any delay in constitution of the new Municipality every five years and in order to avoid the mischief of delaying, the process of election and allowing the Administrator to continue, the provisions have been suitably added to the Constitution. It further laid down that it is necessary for all the State Governments to recognize the significance of the State Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for the Parliament and State Legislatures. 20. 20. The law laid down by Hon'ble Supreme Court of India in Special Reference No.1 of 2002 decided on 28.10.2002 (under Article 143(1) of the Constitution), reported as AIR 2003 SC 87 , on the similar question is as follows:- "The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia exusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him." Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edition at pp. 1962-63 and Craies on Statute Law 6th Ed. P. 268). These aspects were highlighted by this Court in Special Reference 1 of 1974 ( 1975 (1) SCR 504 ). Situations may be created by interested persons to see that elections do not take place and the caretaker government continue in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded." In the present case, sequence of circumstances show that nominated SDO (Civil) is an Administrator who could not be allowed to continue beyond six months within which elections ought to have been held of the Municipal Council, Rewari. Thus, it is clear that respondent - State has not performed its statutory obligation. 21. We may add, the little, large Indians shall not be hijacked from the course of free and fair election by State machinery 'dressed in little, brief authority'. For 'be you and so high, the law is above you'. 22. Thus, it is clear that respondent - State has not performed its statutory obligation. 21. We may add, the little, large Indians shall not be hijacked from the course of free and fair election by State machinery 'dressed in little, brief authority'. For 'be you and so high, the law is above you'. 22. We are of the opinion that necessity of completing the election expeditiously as per the Constitution and Haryana Municipal Act is in public interest and to see that the governance by the people is not paralysed. 23. To sum up, the petition thus will have to be allowed with necessary directions. Hence we made the following order: ORDER i) CWP No.19822 of 2018 is allowed; ii) Respondents are directed to hold and complete the election process of the Municipal Council, Rewari in accordance with law on the existing delimitation of wards; iii) No order as to costs.