J 8 277 CWP No17200 of 2009 1 CHANDIGARH CM No327 of 2011 inland CWP No7200 of 2009 08tMl Date of Decisi0n12402011 1 BSingal etitioner 0 Vs 0 State of Haryana 8 Ors espondents t5 CORAM Honble Mr Justice NKumar Honble MrJustice AtJindal Z 0 Present Mr0PGoyal Srdvocate with Mrarun GuptaAdvocate for the petitioner Mrman ChaudharyAddAG Haryana Z for respondentNo l to 3 f MRameshwar Malik Advocate for respondentsNo 4 and 5 wmo Z Mrmit JhanjiAdvocate for respondentNo Il 1 WhetherReporters of localpapersmaybe allowedto see the judgment9 2 To bereferredto theReporters or not9 3 Whetherthejudgment shouldbe reported in theDigest2 ANJindal J lJ The petitionerbeingthe Vice President of Municipal Councii Panchkuia has invoked the provisionsof Atticle 226 of the Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 278 0 CWP No7200 of 2009 2 of India for quashingthe order dated 1762009 AnnexureP order dated 262009 Annexure PI and order dated 27 10200964nnexureP1 and further seekingmandamus 1 the to allow the petitioner to act in placeof President in his absence or whenevervacancy occurs The primequestionto be determinedin the petition isas CC under 0 Whether the petitioner ice Presidentlcould act as a 0 President for all intents and purposes when the election C5 of the President is subjudice in the Courts2 4 Z The general elections of the MunicipalCouncil Panchkulawere held on 302008 whereby31 members including 4 the petitionerwere dulyelectecl The petitionerwas elected from t Z Ward No 12 RespondentN6 Ravinder Kumar Rawal was also e elected as Councilor from Ward No14 and Iater on elected as 00 President Mr V Sood was also elected as Councilor from Ward A7 Z No in the same election however he Iostthe election of President 0a The election of Ravinder Kumar Rawal came under challengeand the Election Tribunal Panchkula vide its order dated 402009 r acceptedthe election petitionand set aside his election The appeal preferredby him was also dismissed on 82009 bythe Appellate Court Ravinder Kumar Rawal also preferredCivil Writ Petition N9227 of 2009 which also met the same fate vide order dated 81 2010 Letters Patent AppealNo8 of 2010 filed by Ravinder Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 279 0 0 CWP No7200 of 2009 3 Kumar Rawal and LPA No161 7 of 2010 filed by Deputy Commissioner Panchkula and another were acceptedby the Division Bench of this Court on 23201 1 and the election of Noa Ravinder Kumar Rawal was restored and he was held entitledto assume the office of the President for the tenure m l The presentpetitiondirecting the to work Itl 0 the office of the President was filed duringthe pendencyof the CaO earlier Iitigationtherefore the beingVice President still t9 seeks directions to allow him to work in the absence of President or 4 when the vacancy occurs He has submitted that assootras the Z postof President of the Municipal Council becomes vacant and the tr election of the President is set aside in view of the provisionsof 4 I Sections 18 21 22A 25 28 35 50 of the PunjabMunicipalAct t Z 1973 hereinafter referred as Act 19731 ByeLaws3 20 21 23 t 35 36 and 44 of the HaryanaMunicipalBusiness Byeaws 1981 C hereinafter referred as the ByeLaws 19811 and Rule XII4 Xlll 4 of m Z MunicipalAccounts Code 1930 lereinafter referred as Code 19301 llm It has been further submitted that there are statutoryduties and functions to be performedby the Vice President in the absence of Ij 1 the President includingchairingof the meetingssigningthe chequesand files relatingto the tenders He has rightto hold meetingshear the problemsof the peopleperformthe community service on behalf of the council do development work and hear the grievancesof the citizens but due to the absence of the President all Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 280 0 CWP No7200 of 2009 4 the aforesaid works have been put on hold for which No 3 and 4 are Thoughthe Vice Presidentsin MunicipalCouncils in Haryanaare the functions and duties and also enjoyingthe privilegesof the President under Business ByelawsNol and in this respectthere is a violation of the instructions issued vide Ietter dated 1 12009 1C1 Annexure Pl l l 0 In the written statement filed bythe Nol 2 0 and 3 some objections have been raised interalia that 5 Since no order was challengedby the petitioner in the writ petition therefore the same was not maintainable It has been further Z averred that in the Iightof the judgment dated 23092009 delivered V r by Division Bench of this court in Civil Writ Petition Nol 1377 of 2009 titled as Ravinder Kumar Rawal v State of Haryanaand t Z others 4nnexurer81 filingof the presentwrit petitionis sheer mis use of process of Iaw and no cause ofaction survives No rightof m the petitionermuch Iess any statutoryrighthas been infringedby mm Z any action of the respondents Nl to 3 None of the orders passed Qm the respondentsN1 to 3 has been challengedOn merits the C respondentsNol to 3 controvertedall the allegations and further averred that since the matter with regardto the election is already subjudicenow decidedlbefore the Division Bench therefore this t writ petitionis misconceived It has also been averred that the order dated 32009 passed by the respondentNo l authorisingthe petitionerto act as President in the vacancy of the President has Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 281 2 0 CWP No7200 of 2009 5 been set aside bythe Division Bench of this Court vide order dated 1 232009 therefore the respondents were handicappedto ISSue anysuch orders It was also allegedthat the respondentsNo 1 to 3 had been their duties to the best of their abilitysincerity and with integrity without causingany kind of prejudiceto any body including the petitioner However theyare dutybound to follow the 1 0 directionsl orders issued by the Court They never stoppedthe 0 petitionerto function as Vice President So far as Annexure Pl 1 is 0 concerned no such guidelines were soughtfor or issued by the C5 State In fact the petitionerhas incorrectlyshown this Ietterhaving been issued from the office of the respondentNol to the Z No 4 which is factuallyincorrect The allegationof treatingthe 2 MunicipalCouncil Panchkula as personalpropertyand passing orders in arbitrary manneris specifically denied Similar replywas t Z furnishedbythe respondentsNo 4 and 5 f RespondentNo also controvertedthe pleadings of the petitionerby filinga separatewritten statement It was denied that Z election of the petitionerhas not been challengedThe orders Qm Il relied upon by the petitionerin this applicationhave alreadybeen withdrawnbythe Director Urban Local Bodies HaryanaIt is further submittedthat on 21 201 1 in a similar meetingof the Municipal Council Panchukla presidedover bythe AddI DeputyCommissioner lJ in which the petitionerparticipatedhe did not raise any objection regardingconveningand presiding over the same by the Deputy Commissioner Now the petitioner is challengingthe meetingheld on Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 282 1 0 CWP No7200 of 2009 6 9201 1 The issue soughtto be upon bythe has alreadybeen decided bythis court in CWP No 11377 of 2009 filed byanswering respondent ArgumentshearcRecord perused Section 35 of the Act 1973 Byevs 36 and 44 of the ByeIaws1981 and Rule Xll 4 and Xlll of the Code 1930 refersto 1 0 the powers of the President and the Vice President of the Haryana 0 Municipal Council which are reproduced as under 0 Section 35 Extraordinary powers of President or 4 Vice President in case of emergency l 11 On the occurrence or threatened occurrence of any event Z involving or Iikelyto involveextensivedamagetoproperty m or dangerto human Iife or grave inconvenience to the public the President or the Executive Officer or in the Z absence of the President or duringthe vacancy of his 00 office a Vice President may if in his opinionthere is an emergency action before the matter can be mwo Z considered by the committee direct the execution of any l1 such work or the doingof any such act which the committee is empoweredto execute or do as the emergencyshall in his opinionjustifyor requireand may direct that the expense of executingsuch work or doing such act be paidfrom the municipalfund Provided that every such action shall be H reported to the committee at its next meeting Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 283 0 CWP No7200 of 2009 7 2I The President or Vice President or the Executive Officer shall not act under this section in contraventionof anyorder of the committee 3I The President or in his absence or duringthe vacancyof his office ViceaPresident may prohibituntil the matter has been considered by the committee the m L doingof any act which IS in his opinionundesirable in the 0 publicinterest 0 providedthat the act is one which the committee has t powerto prohibit 1 41 No direction given under this section shall be Z questionedin any court on the groundthat the case was n 1r not one of emergency ByeeLaw36 Powers of VicemPresidentlSection31 Z flj In the absence of the presidentthe senior vice 1 presidentshall performall the duties of the presidentand m shall exercise the same powers mm Z ByemLaw44 PresidentjSection 31e The Clm President shall exercise generalcontrol over the work of t Heads of Departmentsand shall pass orders on all 1 matters that may be referred to him throughthe 1Executive Officer or the Secretaryl Rule Xll 141 AII chequesshall be jointlysignedby the President and Executive Officer of the Council If the Executive Officer appointedin MunicipalCouncil is not Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 284 lA 0 1 CWP No 7200 of 2009 8 the Secretaryof the MunicipalCouncil shall signthe cheques7 the case of MunicipalCommittees chequesshall be jointlysignedby the President and Secretaryof the Committee If the President is away then in his place Vice President and Executive as the case may be shall jointlysign 1 C the cheques In case both President and Executive 0 are not present then ViceaPresident 0 and Accountant shall jointlysignthe cheque t5 Provided that in the event of dissolution of the Committee the chequesshall be signedby the oHicer Z appointedby the Government under clause ol of sub s2 section of section 254 of theActJ Rule XlllA Acceptanceof tenders All tenders shall be Z openedby the MunicipalEngineerat the time and place specifiedin the notice issued under the provisionsof rule 10 Xll2 in the presence ofthe President or a Vice President 3 Z of the committee and the MunicipalEngineershall 0a thereaftersubmit to the President or other oHicer or sul 1 committee authorizedby the committeein this behalf all the valid tenders received by that date togetherwith his recommendationas to which tender should be accepted and the President other officer or Chairman of the sube committeeshall signthe tender or tenders which he or it considers should be accepted in token of such Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 285 4 0 CWP No7200 of 2009 9 acceptance 21 In case no suitable rates are received by the Committeethe contract may be givenby auction but this should be resorted to onlywhen the tenders calledfor are consideredas too highin with the current market rates Il 1 0 Theprimecircumstanceswhich permitthe Vice President 0 to actin placeof a President are as follows C5 1 Ill absence e 2 duringhis incapacity to attendto his duties Z 3 duringthe vacancy of his office 1 facts are that one VKSood had filed an election the election of Ravinder Kumar Rawal t Z dated 22008 which was allowed by the Election Tribunal vide 1 judgment dated 4052009 r Two separateappealspreferredby No and ea Z DeputyCommissioner Panchkula were dismissed by the District fl PunchkuIavide orders dated 862009 Aggrievedagainstthe said judgmentRavinder Kumar Rawal respondentNo filed CWP No227 of 2009 which came up for hearingon 1611009 wherein Iearned SingleJudgehad issued notice of motion and notice regardingstayfor 2772009 Deputy Commissioner Panchkula and SDO Civill Panchkula also challengedthe aforesaid judgmentbyfilingseparateCWP No459 Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 286 0 CWP No17200 of 2009 10 of2009 Learned SingleJudgepassedthe order in CWP No227 of 2009 on 147009 which is as under it Notice of Civil Misc MRSundu Additional Advocate General Haryanahas been asked to acceptnotice on behalf of 11 the 0 List on 222009 0 In the meantime will not proceedto fill a9 upthe vacancies of the President and Vice President Z Objectionsbe filed in the meantime ll It is further noticed that duringthe pendencyof the writ Z petitionand after decision of the appeal by the District Judge Panchkula DeputyCommissioner Panchkula wrote a Ietterdated 00 1062009 to the Executive Officer Panchkula Municipal m Z Committee Panchkulal respondentNo 5 to ensure complianceof the order dated 82009 in view of the provisionsof Rule 91 of the HaryanaMunicipaiElections Rules 1978 read with section 273 C of the Act 1973 and ByeIaw36 of ByeIaws1981 Said order was challengedby respondentN6 before the Director Urban Local Bodies Haryanawho stoppedthe process in view of the fact that the matter was subjudicebefore the Honble HighCourt Similarlythe Minister Itchargeof the Local Bodies also Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 287 i CWP No7200 of 2009 11 tooknote of the of No and observed that Since the matter regardingelection of the President Municipal Committee Panchkula was pendingbefore the HighCourt his name has not been delotified bythe Government therefore No be allowed to continue as President Order of the Minister 1 Local Bodies is dated 14062009 It was also to be noticed that the Director Urban Local Bodies Haryanaalso directed 0 0 the DeputyCommissioner Panchkula to withdraw his Ietter dated 1 062009 Letter for withdrawal of Ietterdated 10062009 is dated C5 1 062009 Annexure PI This Ietterhas also been issued by the Z Director Urban Local Bodies on account of the fact that the matter was subjudicein the HighCourt The petitionerchallenged the said Ietterdated 1062009 I Itl appealbefore the Financial Commissioner Revenuelwho vide Z order dated 372009 acceptedthe appeal IO Aggrievedby the said order respondentN6 preferred J Z writ petitionchallenging the order dated 32009 and 17 the provisionof 36 Byeaws1981 Division Bench of this Court vide judgmentdated C 239009 Ann PI quashedthe orderdated 32009 passed by the Financial Commissioner and PrincipalSecretaryto Gov of HaryanaUrban Local Bodies Departmentvide which the petitioner was empoweredto act as President in placeof respondentNo Relevant observationsmade bythe DivisionBench are as under 29 It is apparent from the readingof Ietter dated Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 288 0 lJ CWP No17200 of 2009 12 1762009 Annexure P91 issued by respondentNo3 Director Urban Local Bodies to NolDeputy Commissioner Panchkula that after the facts with regardto the matter beingsubjudicebefore the Honble HighCourt in the pendingwrit petitionwherein notice regardingstay had been issued the matter was C ordered to be put on hold till the receiptof the advice of 0 the Advocate General HaryanaThereafter respondent 0 No4 exercising his powers under Section 247 of 1973Act 4 had passed a statutoryorder dated 262009 whereby the methodlmannerof paymentof electricity bills bills of Z diesellpetrolpaymentof salaryof officersloHicialsetc and for all the works was provideclIt cannot be disputedthat there is no appealprovidedfor any order Z passedby the DeputyCommissioner in exercise of his emergentpowers under Section 247 of 1973 Act It is also 0 not in disputethat factuallyno challengewas made to Z order dated 2662009 64nnexuref101 VVe find that C however the Financial Commissioner while passingthe r 1 impugnedorder dated 32009 has totallynegatedthe of the statutoryorder passed by the competentauthoritydated 262009 4nnexure11 01 30 It is also not in disputethat as per the wordingof Byeaw 36 of 1981 in the absence of the President it IS the Senior Vice President who shall Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 289 0 0 CWP No7200 of 2009 13 performall the duties and exercise the powers of the President It is also an admitted case of the partiesthat Noe Mr BSingal is the Vice President of MC Panchkula who was elected as such alongwith the petitioneras President in the election held on 142008 1 involvingan identical election process It is a different matter that the election of the Vice President was not 0 Ca challengedWe are unable to fathom as to how the Vice 0 President could be directed to exercise the powers in terms of Byeaw 36 of 1981 Byelaws which permits Z conferring such poweronlyon a Senior Vice President ll C This judgment has not been challenged in any manner It may further be observed that after this judgment dated Z C 2092009 Letters Patent AppealNo68 of 2010 filed byrespondent C No was acceptedvide judgmentdated 23201 1 vide which 7 Z judgmentpassed by the SingleBench of this couit as well as tl judgmentspassed by the COurts below were set aside and the election of respondentNo as President has been restored C Thus now when the President is alreadyin the office fully competentto act as such the petitionerhas no cause of action to claim that he be allowed to work as President in his absence SecondlyrespondentNo was never deenotifiedas President The matter with regardto his election was still subjudiceand the Ietter Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 290 1 0 CWP No7200 of 2009 14 dated 372009 issued bythe Government the Vice Presidentto act in the absence of N6 has been set aside therefore the office of the President cannot be said to have been vacated Section23 ofthe Act 1973 reads as underl 1 41 Casual vacancies in office of presidentor vlcee presidentJpon the occurrence of any vacancy in the 0 0 office of President or Vice President a new presidentor C5 shall be elected or appointedin the manner provided under section 18 Z The Notification of the election of the president would be notifiedunder section 24 11of the Act 1973 which reads as underl r 24 Notification of election and nominationsme 0 111 Everyelection or nomination of a member and Z election of a presidentof the MunicipalCommittee or Clo MunicipalCouncil shall be notified in the Official Gazette m Z and no member shall enter upon his duties until his Qw election or nomination has been so notified and until anythingcontained Itl the Oaths Act S 1969 he has taken or made at a meetingof the 1 MunicipalCommittee or MunicipalCouncil an oath or 1 affirmationof his allegianceto India and the Constitution Of IOdia ll If the election of the President had become otherwise Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 291 0 CWP No7200 of 2009 15 invalidthen there would be new as per the provisions of Section 18 of the Act 1973 but the fact remains that when the election of the President or Vice President is subjudicein the court then his office cannot be said to be vacant In the Iightof the Division Bench Judgment dated 1 232009 64nnexureF81which quashedthe powers givenbythe Government to the petitionerto act as President in place of 0 0 respondent No this writ petitionis Iiableto be dismissed findingno merit in the writ petitionthe same is dismissed 1 Z Kumarl Jindall Judge Judge 0 2011 rp t Z 1 00 mm Z 0m U 1t 0 C l Rawat Seema 2014.04.12 15: 53 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document