LPA No.125 of 2007 in -1 - CWP No.12590 of 2005 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.125 of 2007 in CWP No.12590 of 2005 Date of Decision: 29.4.2008. Suman and others ...Petitioners. Vs. State of Haryana and others ..Respondents. CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.S.P.Jain, Sr. Advocate with Mr.Dheeraj Jain, Advocate for the petitioners. Mr.S.K.Bishnoi, DAG Haryana for respondents No.1 to 3. Mr.P.K.Mutneja, Advocate for respondents No.4 and 5. Mr.B.S.Sra, Advocate for respondent No.6. * * * Rakesh Kumar Jain, J. Elections to the Municipal Committee, Pinjore were held on 21.3.2004 in which 15 members were elected and two Ex officio members, namely, Member of Parliament and Member of Legislative Assembly were nominated. On 12.4.2004, a meeting was convened under the chairmanship of SDO(C) Kalka regarding administering the oath to the newly elected members of the Municipal Committee in which all the 15 elected members had participated and were administered oath. Vide his order dated 17.2.2005, the Deputy Commissioner, Panchkula called a special meeting LPA No.125 of 2007 in -2 - CWP No.12590 of 2005 for 21.2.2005 at 9 a.m. under the chairmanship of SDO(C) Kalka for the election of President and Vice President of Municipal Committee, Pinjore. As per the proceedings of the meeting recorded on 21.2.2005, notice of the special meeting was given to all the 17 members but only 8 members attended the meeting, whose signatures and presence was recorded but since the quorum of the House was required to be 9, the special meeting convened for the election of the President and the Vice President was postponed/adjourned. However, no date and time was announced to which meeting dated 21.2.2005 was postponed/adjourned. Vide notice dated 2.8.2005, SDO(C) Kalka informed the members of the Committee that a special meeting shall be held on 5.8.2005 in the Conference Hall of Forest Complex, Pinjore for the election of the President and the Vice President. The special meeting as envisaged vide notice dated 2.8.2005 was held on 5.8.2005 under the chairmanship of SDO(C) Kalka in which again 8 elected members out of 17, came present and participated. In the proceedings of meeting dated 5.8.2005, it was categorically mentioned that the meeting convened on 21.2.2005 for the election of the President and the Vice President was adjourned because of lack of quorum, however, the meeting dated 5.8.2005 was proceeded with 8 members in which Kuldeep Singh and Smt.Krishna Lakra were elected the President and the Vice President unanimously. Thereafter, the proceedings were declared to be complete. After the aforesaid election notification dated 8.8.2005 was issued in exercise of the powers conferred under Section 24 Sub Sections (1) & (2) of the Haryana Municipal Act, 1973 and Kuldeep Singh was notified as President of the Municipal Committee, Pinjore. LPA No.125 of 2007 in -3 - CWP No.12590 of 2005 The present appellants had filed CWP No.12590 of 2005 seeking a writ in the nature of certiorari for quashing resolution dated 5.8.2005 vide which Kuldeep Singh and Smt.Krishna Lakra were elected as President and Vice President of the Municipal Committee, Pinjore, notification dated 8.8.2005 vide which Kuldeep Singh was notified as President of the Municipal Committee, Pinjore and further sought a writ in the nature of mandamus directing the official respondents to hold fresh elections for the post of the President and the Vice President. The said writ petition was dismissed by a Single Bench of this Court on 3.4.2007 inter alia holding that for the election of the President and the Vice President, no quorum is required under the rules and since business of the Committee is transacted in the ordinary or special meeting, it can not be equated with the election of the President and the Vice President as the election of President and Vice President merely facilitates the discharge of the functions of the Committee. It was also held that the writ jurisdiction of this Court is not barred and in the given circumstances, this Court can entertain the writ petition directly. However, the question of alternative remedy was not decided as the writ petition was dismissed on merits. In the present appeal, the appellants have assailed the order dated 3.4.2007 passed by learned Single Judge, resolution dated 5.8.2005 as well as notification dated 8.8.2005 vide which election of respondents No.5 was notified. Sh.S.P.Jain, Sr.Advocate appearing for the appellants, before embarking upon the merits of the case, referred to Sections 18, 26, 27 of the Haryana Municipal Act, 1973 (for short `the Act'), Bye-Laws 4 and 14 of LPA No.125 of 2007 in -4 - CWP No.12590 of 2005 the Haryana Municipal Business Bye Laws, 1981 (for short the `Bye Laws') and also Rule 70 of the Haryana Municipal Election Rules, 1978 (for short `the Rules') as they are relevant for the adjudication of the present controversy. The aforesaid provisions are being reproduced as under : Section 18: Election of President and Vice-President - (1) Every Municipal Committee or Municipal Council shall, from time to time, elect [one of its elected members] to be president for such period as may be prescribed, and the member so elected shall become President of the Municipal Committee or Municipal Council: Provided that the office of the President in Municipal Committee and Municipal Council shall be reserved for Scheduled Castes and women in accordance with the provisions made in Section 10: Provided further that if the office of President is vacated during his tenure on account of death, resignation or no confidence motion, a fresh election for the remainder of the period shall be held from the same category. (2)Every Municipal Committee or Municipal Council shall also, from time to time, [elect one of its elected members to be vice-president]: Provided that if the office of the Vice-President is vacated during his tenure on account of death, resignation or no confidence motion, a fresh election for the remainder of the period shall be held. (3)The term of the office of Vice-President shall be for a period of five years or for the residue period of his office as a LPA No.125 of 2007 in -5 - CWP No.12590 of 2005 member, whichever is less.] Section 26: Ordinary and Special meetings -(1) Every meeting of a committee shall be either ordinary or special. (2) Any business may be transacted at an ordinary meeting unless required by this Act or the rules to be transacted at a special meeting. (3) When a special and an ordinary meetings are called for the same day the special meeting shall be held as soon as the necessary quorum is present. Section 27: Quorum-(1): The quorum necessary for the transaction of business at a special meeting of a committee shall be one-half of the number of the members of the committee actually serving at the time, but shall not be less than three. (2)The quorum necessary for the transaction of business at any ordinary meeting of a committee shall be such number or proportion of the members of the committee as may, from time to time, be fixed by the bye-laws, but shall not be less than three:- Provided that, if at any ordinary or special meeting of a committee a quorum is not present, the chairman shall adjourn the meeting to such other day as he may think fit,and the business which would have been brought before the original meeting if there had been a quorum present shall be brought before, and transacted at, the adjourned meeting, whether there be a quorum present there or not. Bye-Law 4: Notice [Section 31(1)]-(1) A written notice of the meeting duly signed by the Secretary shall be delivered to every member or left at his usual place of abode or business with some adult LPA No.125 of 2007 in -6 - CWP No.12590 of 2005 member or servant of his family and if it cannot be so delivered, it shall be affixed on some conspicuous part of the place or his abode or business giving at least seven clear days before the date fixed for an ordinary meeting and forty-eight hours for a special meeting. (2)The notice of every meeting shall specify the business proposed to be transacted there at and shall state the place, date and time of the meeting. Bye-Law-14. Adjournment and notice of adjourned meeting [Section 31(c) and (1) ]- In the absence of requisite quorum or if the members refuse to obey the ruling or the decision of the majority of the members present in the meeting, the Chairman may adjourn the meeting at any time and once the meeting is adjourned subsequent proceedings of the meeting or any resolution passed thereafter shall be void. The notice of an adjourned meeting shall be given by the Chairman on the spot and shall be sent to the members who are absent in accordance with Bye-law4. No business shall be transacted at an adjourned meeting other than the business left unfinished at the meeting which was adjourned. No quorum shall be necessary at an adjourned meeting: Provided that the place, date or hour of such adjourned meeting may be modified, in an emergency, but in such cases, the meeting shall require the requisite quorum. Rule 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 LPA No.125 of 2007 in -7 - CWP No.12590 of 2005 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 stated that the oath of allegiance will be administered to the members present, and that the election of President and Vice President shall be held in the meeting. The convener shall administer the oath 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 a 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 the 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 causal vacancy subsequently by the Chairman of the meeting at which such member appears to take such oath. (3)The terms of office of the President shall be for five years or the residue of the term of his office as a member whichever is less. The President shall be elected from amongst the members of the Committee. (4)The offices of the presidents in the municipalities shall be filled up from amongst the members belonging to the general category, LPA No.125 of 2007 in -8 - CWP No.12590 of 2005 Scheduled Castes, Backward Classes and women by rotation which will be determined in the manner as detailed below: Provided that the number of offices of the president reserved for the Scheduled Castes and Backward Classes in the State shall bear as may be the same proportion to the total number of such offices of the municipalities as the population of the Scheduled Castes and Backward Classes in the State bears to the total population of the State : Provided further that not less than one third of the total number of offices of the president in the municipalities shall be reserved for women including the offices reserved for Scheduled Castes and Backward Classes women. The reservation of offices for women shall rotate to different municipalities which will be determined by draw of lots, by a committee consisting of the {State Election Commissioner, Haryana} and Deputy Commissioners of the districts concerned or their nominee. If women of the reserved category are not available, then the office of the president shall be filled up from the male member of the said reserved category. {In case a woman of the reserved category is elected subsequently, then the office of the President shall be deemed to have been vacated and the elected woman shall be elected as President in accordance with the provisions of these rules.} Provided further that the number of offices of the president for Scheduled Castes and Backward Classes shall be determined on basis of their population and shall rotate to different municipalities firstly, LPA No.125 of 2007 in -9 - CWP No.12590 of 2005 having largest population of Scheduled Castes, secondly, from the remaining municipalities having largest population of Backward Classes and they rotate in the subsequent terms of offices of the municipalities having their next largest population and so on. In case percentage of population of two Municipal Committees or Municipal Councils as regard Backward Classes and Scheduled Castes is the same the reservation will be determined by draw of lots to be conducted by a committee consisting of [State Election Commissioner, Haryana] and Deputy Commissioner of district concerned or his nominee: Provided further that in case of office of the Municipal Council reserved for the Backward Classes, the President shall be elected from amongst the members belonging to the Backward Classes and in case of Municipal Committee, the member of Backward Class shall be deemed to be elected as president of the committee reserved for the Backward Classes.” It is argued that a perusal of the aforesaid Provisions shows that as per Section 18 of the Act, one of the elected members can become the President or the Vice President, as per Section 26 of the Act, there could be only two kinds of meetings of a Committee which can be either ordinary or special, according to Section 27 of the Act, quorum is necessary for the transaction of any business at any ordinary or special meeting of the Committee which shall be one half of the number of members of the Committee actually serving at that time but shall not be less than 3, Bye- Law 4 of the Bye-Laws provides that notice has to be for specified place, LPA No.125 of 2007 in -10 - CWP No.12590 of 2005 date and time of the meeting, Bye-Law 14 provides that in case of an adjourned meeting, notice shall have to be given by the Chairman on the spot and shall be sent to the members who are absent in accordance with Bye-Law 4 and Rule 70 provides that within the period of 30 days of publication of notification of the names of the members elected to a Committee, the Deputy Commissioner or any gazetted officer appointed by him in this behalf shall convene the first meeting of the newly constituted Committee at forty eight hours notice which clearly states that the oath of allegiance will be administered to the members present and that election to the office of the President and the Vice President shall be held in the meeting. Convener shall administer the oath to the members and shall preside over the meeting till the election of the President and the Vice President. Counsel for the appellants has vehemently argued that the resolution dated 5.8.2005 is patently illegal as the same has been passed without quorum as prescribed under the Law. He has referred to the meeting dated 12.4.2004 which was convened only for the administration of oath to the newly elected members. No proceedings were carried out for the purpose of election of the President and the Vice President, therefore, the meeting which was held under Rule 70 was over on 12.4.2004. It is further argued that for the purpose of election of the President and the Vice President, a special meeting was held on 21.2.2005 which had failed due to the lack of quorum because out of 17 members only 8 members had participated whereas quorum required was of 9, however, resolution was passed for the election of the President and the Vice President in the special LPA No.125 of 2007 in -11 - CWP No.12590 of 2005 meeting held on 5.8.2005 in which again out of 17 members, 8 members had participated which number was short of the required quorum. Counsel for the appellants has thus argued that although the quorum was incomplete and the proceedings dated 5.8.2005 directly ran counter to the proceedings held on 21.2.2005 yet the learned Single Judge has erroneously decided that no quorum is required for the election of the President and the Vice President in the special meeting as it is not a business of the Committee. It was further highlighted by the counsel for the appellants that on 17.4.2003, the State Election Commission, Haryana had issued instructions regarding the elections to the office of President and Vice President of Municipalities by exercising the powers conferred under Article 243ZA of the Constitution of India and Section 3A of the Act as to how the nomination papers have to be filled up while holding the elections for the posts of President and Vice President. The relevant portion of the nomination paper is extracted from the record, is reproduced as under :- “(i) That the nomination paper for election to the office of President and Vice President shall be as given below:- Form of Nomination Paper for Election for the office of President/Vice President of Municipal Council/Committee. Name of Municipal Council/Committee ______________ Name in Full of Candidate ______________ Father's name/Husband's name _______________ Full Address ________________ Name in Full of proposer ________________ Signature of the Proposer ________________ Name in full of Seconder ________________ Signature of the Seconder ________________ DECLARATION OF CANDIDATE I hereby declare that I agree to the nomination and I am LPA No.125 of 2007 in -12 - CWP No.12590 of 2005 willing to serve. Place __________ Date _________ Signature of Candidate DECLARATION BY A CANDIDATE WHO IS A MEMBER OF ANY SCHEDULED CASTE/BACKWARD CLASS. I do hereby declare that I am a member of the ________ caste which has been declared to the Scheduled Caste/Backward Class in the State of Haryana. Date : Signature of candidate” Counsel for the appellants has argued that in the resolution dated 5.8.2005, name of proposer is mentioned, however, name of the seconder is conspicuous by its absence. It was pointed out that at the time of commencement of proceedings, Jit Singh Municipal Councilor proposed the name of Kuldeep Singh and Dharampal Singla, Municipal Councilor proposed the name of Smt.Krishna Lakra for the post of President and Vice President respectively but nothing has been mentioned in the proceedings as to who had seconded them. It was further argued that the learned Single Judge has erred in appreciating the fact that both the meetings held on 21.2.2005 and 5.8.2005 were categorically mentioned as “special meetings” and it is provided under Section 27 of the Act that quorum necessary for transacting the business of a special meeting shall have to be one half of the number of members of the Committee actually serving at that time but shall not be less than 3. Therefore, counsel for the appellants submitted that once the meeting which has been itself held to be a special meeting which is covered by Sections 26 and 27 of the Act, the observation of the learned LPA No.125 of 2007 in -13 - CWP No.12590 of 2005 Single Judge that no quorum is required in meeting held under the rules is not only erroneous but illegal. Mr.P.K.Mutneja, learned counsel for respondents No.4 and 5, on the other hand, argued that the election of the President and the Vice President of the Municipal committee has to be held in a meeting under the Rules for which no quorum is required. Quorum is required for transacting business of the Committee in the ordinary and special meeting whereas the election of the President and the Vice President is not a business of the Committee. He further referred to the Provisions of Article 243ZA, 243W, 243X, 243R(b) of the Constitution of India as well as Section 3A of the Act and Rule 70 of the Rules. It is argued by him that Rule 70 of the Rules is a Code by itself in which there is no provision for quorum. Counsel had argued that decision rendered by the learned Single Judge is in accordance with law and does not call for any interference in appeal. In the end, counsel for the respondents No.4 and 5 had also objected to the maintainability of the writ petition before this Court under Article 226 of the Constitution of India and alleged that the petitioner should have availed alternative remedy of election petition. In this regard, a decision of the Full Bench of this Court has been cited in the case of Prithvi Raj Vs. State Election Commission, Punjab and Others 2007(2) ILR (Punjab and Haryana) 206. Sh.S.K.Bishnoi, counsel for the State and Sh.B.S.Sra, Advocate appearing for respondent No.6 adopted the arguments raised by counsel for respondents No.4 and 5. We have heard counsel for the parties and have perused the record with their assistance. LPA No.125 of 2007 in -14 - CWP No.12590 of 2005 The facts are not much in dispute. According to Rule 70 of the Rules, Deputy Commissioner or Gazetted Officer appointed by him, within a period of 30 days of the publication of the notification of the names of the members elected to the Committee, has to convene the first meeting of the newly constituted Committee at 48 hours notice clearly stating that the oath of allegiance shall be administered to the newly elected members and that the election of the President and the Vice President shall also be held in that meeting. Under Rule 70 of the Rules, no quorum is prescribed obviously because all the newly elected members are expected to attend that meeting for the purpose of taking oath. In the meeting held on 12.2.2004 where all the 15 elected members came present, only oath of allegiance was administered to them and no other proceeding was carried out for the purpose of election of the President and the Vice President. After the oath, the meeting dated 12.2.2004 was concluded without reference to the election of the President or the Vice President. After the aforesaid meeting dated 12.2.2004, a “special meeting” was called on 21.2.2005 after a gap of about 10 months specifically for the purpose of the election of the President and the Vice President but that meeting had failed due to lack of quorum because out of 17 members of the Committee, the required quorum for passing the resolution was of 9 members out of which only 8 members had attended the meeting. Therefore, the meeting was postponed/adjourned by the Chairman of the meeting without giving any specific date and time. This meeting in our view, being a special meeting was required to have quorum of one half LPA No.125 of 2007 in -15 - CWP No.12590 of 2005 of the number of the members of the Committee actually serving at that time as per Section 27 of the Act in which the resolution was not rightly passed. However, after a gap of another six months, another “special meeting” was convened on 5.8.2005 for the election of the President and the Vice President after giving a fresh notice but in this meeting again only 8 members had participated which was lesser than the required quorum of 9 members, however, the impugned resolution was passed and respondents No.4 and 5 were declared elected as the President and the Vice President respectively. Counsel for the respondents has miserably failed to explain to us as to why the “special meeting” held on 21.2.2005 was adjourned/postponed due to lack of quorum and why a “special meeting” held on 5.8.2005 in which the same quorum was present, the resolution was passed.