Punjab-Haryana High Court
Kulwant Kaur And Others vs State Of Punjab And Others on 18 January, 2025
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Kirti Singh
Neutral Citation No:=2025:PHHC:007598-DB
CWP No. 23597 of 2024 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CWP No. 23597 of 2024 (O&M)
Reserved on: 12.12.2024
Date of Decision: 18.1.2025
Kulwant Kaur and others ......Petitioners
Versus
State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE KIRTI SINGH
Argued by: Mr. Aditya Dassaur, Advocate
for the petitioners.
Mr. Anurag Chopra, Addl. A.G., Punjab.
Mr.Dharam Vir Sharma, Senior Advocate with
Ms. Pooja Yadav, Advocate
for respondent No. 4.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioners seek quashing
of the proceedings of the meetings of Municipal Council, Nawanshahr, held
by respondent No. 4 on 28.8.2023 (Annexure P-3), on 29.9.2023 (Annexure
P-9), on 15.12.2023 (Annexure P-14), on 24.6.2024 (Annexure P-16) and on
29.7.2024 (Annexures P-17 and P-18), and any other meeting held after
April 2023, as the same became conducted in violation of the provisions of
the Punjab Municipal Act, 1911 (for short ‘the Act of 1911’).
Brief facts of the case
2. The President of Municipal Council, Nawanshahr was removed
by a notification/order, and, the said removal became challenged by filing
CWP No. 17139 of 2023 titled as Sachin Diwan versus State of Punjab and
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others, which is pending adjudication. The Vice President of the Municipal
Council relinquished his office upon completion of his term, and, since then
no election has been held afresh to fill the said vacancy. Respondent No. 4
called a meeting for 28.8.2023, upon which the petitioners filed their
objections and apprehensions in writing by way of a representation,
whereins it was stated that the post of Vice President is lying vacant, and,
until such elections are conducted, respondent No. 4 has no authority to set
agendas and hold meetings as such a power only lies with the President or
the Vice President. However, since the meeting was held on 28.8.2023,
therebys the petitioners moved another representation before the respondents
concerned, to enquire about the status of their representation and the
decision taken thereon.
3. Respondent No. 2 issued instructions dated 8.9.2022, whereins,
respondent No. 2 has in unequivocal terms, thus written to the Deputy
Commissioner concerned, to conduct the elections of the President/Vice
President, as and when the said post becomes vacant.
4. On 26.9.2023, another notice was issued wherebys, the apposite
agenda became set by respondent No. 4, thus for discussion in the meeting
of the Municipal Council concerned, scheduled on 29.9.2023. Resultantly,
the petitioners again moved a representation to the respondents concerned
for revoking the said notice and for not holding the said meeting, as the
election to the post of Vice President has still not been held. The petitioners
also gave a legal notice to respondents No. 2 to 5 to withdraw the notice
(supra). However, despite the above, respondent No. 4 proceeded to hold
meeting on 29.9.2023.
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5. Earlier the petitioners had also filed a writ petition before this
Court bearing CWP No. 24260 of 2023 titled as ‘Kulwant Kaur and others
versus State of Punjab and others, whereins, challenge was made to the
holding of two unlawful meetings even without the said meetings becoming
chaired by the duly elected Vice President. However, since there was no
stay order in the petition (supra), therefore, respondent No. 4 continued to
conduct unlawful meetings, and, even passed the budget for the Municipal
Council concerned, thus without any authority. Subsequently, in order to lay
challenge to the subsequent meetings and proceedings, the petitioners
withdrew the petition (supra) with liberty to file afresh by challenging the
subsequent meetings also.
6. In the reply filed by respondent No. 4, it is averred that one
Sachin Diwan, who was the President of the Municipal Council concerned,
was removed by the State under Section 22 of the Act of 1911, as he had
abused his powers as the President of the Municipal Council. It is further
averred that since the tenure of the Senior Vice President/Vice President, has
expired and no senior President or Vice President has been elected, therefore
in their absence no meetings had been held. It is also averred that under
Section 5 of the Punjab Municipal (Executive Officer) Act, 1931 (for short
‘the Act of 1931’), provision whereof becomes extracted hereinafter, the
Executive Officer may exercise all or any of the powers conferred upon the
Secretary of the Committee by the Municipal Act or by any rule or bye-law
made thereunder or under any other Act.
“5. The Executive Officer its have powers of Secretary.-The
Executive Officer may exercise all or any of the powers conferred
upon the Secretary of the committee by the Municipal Act or by3 of 12
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any rule or bye-Iaw made thereunder oir under any other Act.”
7. The present petition is not maintainable as the petitioners have
the alternate remedy of filing a petition under Section 232 of the Act of
1911. It is further stated in the reply that in the meeting held on 28.8.2023,
in which 12 out of 20 Councilors participated, all of the said 12 Councilors
had unanimously passed the resolutions.
Submissions of the learned counsel for the petitioners
8. The learned counsel for the petitioners submits, that the Punjab
Municipal (President and Vice President) Election Rules, 1994, have been
framed to regulate the conduct of elections for the post of President and Vice
President of any Municipality. He further submits that the proviso to Rule 3
of the Rules 1994 provides that in the event of a casual vacancy arising in
the office of President or a Vice President, as the case may be, the convener
(Deputy Commissioner or any other official authorized by him in this
behalf) shall convene a meeting of the municipality to fill such a casual
vacancy. Resultantly therebys a statutory duty became cast upon the Deputy
Commissioner to ensure the conducting of the meeting for filling up the
vacancy of Vice President, so that subsequently the meeting is convened for
thereins the transaction of business of the Committee becoming well made
9. The learned counsel further submits, that Section 25 of the Act
of 1911 provides that the President or in his absence, the Vice President of
the Municipal Council, shall convene a meeting upon receipt of a requisition
in this regard. However, Section 25(3) of the Act of 1911, envisages that if
the President or the Vice President, fail(s) to call a meeting of the committee
within fourteen days upon the receipt of a requisition, thereupons the
members who had signed the requisition may convene such a meeting of the
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committee. Therefore, only those members of the committee, who have
signed the requisition for the calling of such a meeting, are empowered to
call a meeting in the absence of the President or the Vice President.
Furthermore, the learned counsel has argued that respondent No. 4 has acted
without any authority in convening the meetings of the Municipal Council
concerned, and, that such meetings and the proceedings conducted thereon
become non-est, and, are required to be set aside.
Submissions of the learned senior counsel for respondent No. 4
10. The learned senior counsel for respondent No. 4 submits, that
the instant case pertains to the doctrine of necessity, as upon the non-
summoning of the meetings in the absence of the President and the Vice
President, rather the work of the Municipal Council, thus becomes withheld.
Therefore, on the requisitions of 1/5th Councilors, meetings of the House
were held, wherein, resolutions were passed by 12 Councilors out of 20 and
the petitioners after taking the remunerations for the meeting, walked out of
the meeting. He has placed reliance upon the judgment passed by the Apex
Court in case titled as Election Commission of India versus Dr.
Subramaniam Swamy, reported in (1996) 4 SCC 104. The relevant
paragraph of the judgment (supra) become extracted hereinafter.
“We must have a clear conception of the doctrine. It is well
settled that the law permits certain things to be done as a matter
of necessity which it would otherwise not countenance on the
touchstone of judicial propriety. Stated differently, the doctrine of
necessity makes it imperative for the authority to decide and
considerations of judicial propriety must yield. It is often invoked
in cases of bias where there is no other authority or Judge to
decide the issue. If the doctrine of necessity is not allowed full
play in certain unavoidable situations, it would impede the course
of justice itself and the defaulting party would benefit therefrom.
Take the case of a certain taxing statute which taxes certain
perquisites allowed to Judges. If the validity of such a provision
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is challenged who but the members of the judiciary must decide
it. If all the Judges are disqualified on the plea that striking down
of such a legislation would benefit them, a stalemate situation
may develop. In such cases the doctrine of necessity comes into
play. If the choice is between allowing biased person to act or to
stifle the action altogether, the choice must fall in favour of the
former as it is the only way to promote decision-making. In the
present case also if the two Election Commissioners are able to
reach a unanimous decision, there is no need for the Chief.
Election Commissioner to participate, if not the doctrine of
necessity may have to be he invoked.”
11. The learned senior counsel further submits, that the petitioners
had never given any representation to the Deputy Commissioner,
Nawanshahr, thus for the holdings of the elections of the office of Vice
President, as admittedly they are in a minority. It is further contended that
even otherwise the provisions as occur in Section 25 of the Act of 1911 are
directory and not mandatory in nature.
Inferences of this Court
12. The relevant provisions whereunders a well/able apposite
meeting could be convened, are borne in Section 25 of the Act of 1911,
provisions whereof become extracted hereinafter.
“25. Times of holding Meetings
(1) Every committee shall meet for the transaction of business
at least once in every month at such time as may, from time to
time, be fixed by the bye-laws.
(2) The President or, in the absence [or during the vacancy of
his office [or during his suspension under Section 22] [Inserted
by Punjab Act No. 3 of 1983.] a Vice-President may, whenever he
thinks fit and shall on a requisition [specifying the purpose of the
meeting made in writing] [Inserted Punjab Act No. 24 of 1973.]
by not less than one fifth of the members of the committee,
convene either an ordinary or a special meeting at any other
time.
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(3) If the President or the Vice-President, as the case may be,
fails to call a meeting of the committee within a period of
fourteen days from the date of receipt of requisition, the members
who had signed the requisition may convene a meeting of the
committee in accordance with the bye-laws of the committee
within a period of thirty days of the making of such requisition
and notwithstanding anything contained in this Act such meeting
shall be deemed to be a validity conveyened meeting :
Provided that no business other than that specified in the
requisition shall be transacted in such meeting and the quorum
for such a meeting shall be as provided for a special meeting
under sub-section (1) of Section 27.”
13. Since a reading of the above extracted provision, reveals, that
for the holding of an able apposite meeting, whereins, the transaction of the
apposite business of the committee can become conducted, thus requires that
the apposite convening order has to be rendered by the President or the Vice
President. Moreover, sub-Section (3) of Section 25 of the Act of 1911
empowers only those members of the committee, to suo moto convene a
meeting in the absence of both the President or the Vice President, but yet
upon their signing the apposite requisition. However, yet when the instantly
rendered convening orders become so rendered by the Executive Officer of
the Municipal Council concerned, who is otherwise not empowered to order
for the convening of the said meetings, whereas, in the absence of the supra,
there was a suo moto empowerment in the signatories of the apposite
requisitionees to convene the meeting, which however has not been done,
therebys the said instantly made convening orders, thus by respondent No. 4
are in clear violation of the mandatory provisions (supra).
14. Moreover, the provisions as embodied in Section 4 of the Act of
1931, defines the powers to the exercised by the Executive Officer. The said
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provisions become extracted hereinafter.
“4. Powers of the Executive Officer.-In a municipality in which
an Executive Officer has been appointed.. –
(a) the executive power for the purpose of carrying on the
administration of the municipality shall, subject to the provisions
of this Act and of any rules made under this Act, or under the
Municipal Act, vest in the Executive Officer :
(b) the powers conferred and duties imposed upon, the
functions vested in, and the obections to be tendered and notice
given to, the committee under the sections of the Municipal Act
mentioned in Schedule I, shall not be exercised or performed by,
vested in, or be tendered or given to, the committee, but may be
exercised or shall be performed by, or shall vest in, or shall be
tendered or given to, the Executive Officer, provided that-
(i) the power conferred by section 39 of the Municipal Act
shall not be exercised by the Executive Officer and may be
exercised by the Committee in respect of the appointment of
any Officer or servant of the committee to a post for which the
monthly remuneration exceeds [Rs. 251], and in respect of the
power of removal or dismissal of any officer or servant whose
monthly remuneration exceeds Rs. 45, provided that the
Executive Officer shall dismiss an employee if required by the
committee to do so;
(ii) the power to revise the valuation and assessment
conferred by section 65 of the Municipal Act and the power to
amend the assessment list conferred by sub-clause (1) of
section 67 of the Municipal Act shall be exercised by a sub-
committee consisting of the Executive Officer and two
members of the committee appointed by the committee for the
purpose;
(iii) the power of the Executive Officer to withhold the
grant of a license for any of the trades or purposes specified in
sections 121,122 of the Municipal Act or to withhold written
permission under section 124 of the Municipal Act may by
byelaw be made subject to revision by the Committee;
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(iv) the exercise or discharge by the Executive Officer of
any power, duty or function thus conferred, imposed or vested
in him, shall be subject to such restrictions, limitations and
conditions as may be imposed by any rules made by the [State
Government], under the Municipal Act upon the exercise or
discharge of such power, duty or function by the committee;
(c) the Municipal Act shall be deemed to have been amended
in the manner set forth in schedule I1;
(d) no bye-laws inconsistent with this Act shall be made by the
committee in exercise of the powers conferred by section 31, of
the Municipal Act and, if any such be-laws have been made, they
shall be deemed to have been cancelled to the extent to which
they are thus inconsistent;
(e) if any bye-law made by the committee in exercise of the
powers conferred by sections 188, 189, 197 or 198 or in any rule
made in exercise of the powers conferred by section 3 of the
Hackney Carriage Act, 1879, it is provided that notice shall be
given to or licenses granted by the committee, such bye-law or
rule shall be deemed to have been amended so as to provide that
subject to bye-laws made under the Municipal Act or rules made
under this Act such notice shall be given to, or such license
granted by, the Executive Officer.”
15. A reading of the above extracted provisions shows, that no such
power is vested in the Executive Officer, wherebys he becomes enabled to
convene a meeting of the Committee. Contrarily, the Executive Officer is
empowered only to conduct the administrative functions of the Committee.
Resultanty, when respondent No. 4 rather held no authority to conduct the
meetings (supra) of the Municipal Council concerned, thus therebys the
convening of meetings (supra), and, also the proceedings embarked thereons
are required to be quashed and set aside.
16. Moreover, the plea of doctrine of necessity, as raised by the
learned senior counsel for respondent No.4, is also not applicable to the
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present case. The reasons for drawing the above conclusion, is that, when
there is a clear statutory forbiddance against the Executive Officer, thus to
make an order to convene the meeting(s) of the Municipal
Council/Committee, for thereons the apposite business of the Municipal
Committee becoming transacted. Resultantly the supra effort to validate the
convening of the meetings by an evidently disempowered officer, but is an
ill attempt to validate the same, and, as such the said argument founded upon
the doctrine of necessity, is rejected.
17. The further reason for stating so becomes aroused from the
factum, that since the Municipal Committees concerned, are democratically
elected institutions, therebys only the democratically elected officer(s) is/are
required to be chairing the meeting, besides become empowered to transact
the business of the Municipal Committee concerned. If the said statutory
empowerment, as vested in the validly elected officers concerned, is
snatched from them, therebys the statutory purpose for the transactions’ of
the business of the Municipal Committee concerned, thus by the
democratically elected officers concerned, but would not only defeat the
statutory purpose, but would also be antithetical to the democratic
functionings of the local self governments concerned, which is to be done
only by the democratically elected officer(s) concerned, and, not by the
administrative officer(s), as has untenably happened in the instant case.
18. Therefore therebys, with the said statutory forbiddance
becoming created against the Executive Officer concerned, qua his
convening the meetings for thereins the business of the Municipal
Committee becomes transacted, but makes inapplicable the doctrine of
necessity vis-a-vis the instant case.
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19. The statutory authority concerned, was to ensure that the
business of the Committee concerned, becomes transacted in the manner,
ordained in law, through ensuring the forthwith conducting of elections to
the office of Vice President. However, the said has not been done.
Contrarily, the transaction of the business of the Committee rather has been
untenably permitted to be done by a disempowered Executive Officer
concerned. Therefore, the respondent concerned, is directed to forthwith
ensure the conducting(s) of election(s) to the office of the Vice President, so
that subsequently, valid meetings for the relevant purposes can become
convened, so that thereins the transaction of the business of the Committee
thus can be validly done.
20. Last but not the least, dependence upon Section 5 of the Act of
1931, is an ill dependence thereons, as thereins there is an endowment of
permissibility vis-a-vis the Executive Officer, thus to only exercise the
powers of the Secretary of the Committee, but the said endowment does not
yet permit him to convene the meetings of the Committee rather for thereins
business of the Committee becoming transacted.
Final order
21. For all the above stated reasons, this Court finds merit in the
instant petition, and, is constrained to allow it. Consequently, the instant
petition is allowed. The impugned annexures are quashed and set aside.
Moreover, a mandamus is made upon the respondent concerned, to forthwith
ensure the convening of the meetings of the Municipal Committee
concerned, thus initially for conducting elections to the office of the Vice
President, so that subsequently the said validly elected Vice President of the
Municipal Committee can in terms of sub-Section (2) of Section 25 of the
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Act of 1911, thus convene the apposite meeting. However, if the Vice
President is unable to convene the meeting, therebys in terms of sub-Section
(3) of Section 25 of the Act of 1911, the members who sign the requisition,
may convene the meeting, so that thereins transaction of business of the
Municipal Committee becomes validly done, besides also to ensure that the
said transacted business does not become vitiated.
22. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(KIRTI SINGH)
JUDGE
January 18th, 2025
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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