Kulwant Kaur And Others vs State Of Punjab And Others
2025 Latest Caselaw 1045 P&H

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 by

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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 4 of 12

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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 5 of 12

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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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