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2017 Supreme(P&H) 2288
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
S.S. Saron, Avneesh Jhingan, JJ.
Satinder Singh - Petitioner
Versus
Union of India and Others - Respondents
CWP No.20346 of 2016 (O&M)
Decided On : 23-08-2017
Advocate Appeared:
For the Petitioner:Mr. Baltej Singh Sidhu, Advocate, Mr. H.C. Arora, Advocate
For the Respondents:Mr. Satya Pal Jain, Senior Advocate/Additional Solicitor General of India with Mr. Dheeraj Jain, Advocate, Mr. Suvir Sehgal, Senior Standing Counsel and Mr. Sanjiv Ghai, Advocate, Ms. Deepali Puri, Advocate, Mr. Brijeshwar Singh Jaswal, Advocate for Mr. G.S. Jaswal, Advocate
Municipal Corporations--Right to Vote--Nominated members who have no right to vote in the meetings of the municipalities would have no right to vote even in the meetings for the election of the Mayor of the Municipal Corporation, Chandigarh
Delegated Legislation--Delegated legislation does not confer powers on the executive to issue notification which are in derogation of the legislative intent itself
Headnote:
(A) Constitution of India, 1950, Art.243 R and Art. 243 ZB--Municipal Corporations--Right to Vote--Nominated members who have no right to vote in the meetings of the municipalities would have no right to vote even in the meetings for the election of the Mayor of the Municipal Corporation, Chandigarh and this cannot be incorporated in a legislation in derogation to the constitutional mandate by issuance of notification--Punjab Municipal Corporation Act, 1976, S.4(3) (ii).
(a) The constitutional mandate of proviso to Article 243 R (2) (a) is that persons mentioned in paragraph (i) i.e. relating to representation in a municipality of persons having special knowledge or experience in Municipal Administration or nominated members of the Municipal Corporation, Chandigarh do not have the right of voting in the meetings of the Municipality.
(b) In meeting to be convened for election of Mayor, the nominated members who have no right to vote in the meetings of the municipalities would have no right to vote even in the meetings for the election of the Mayor of the Municipal Corporation, Chandigarh
(c) The proviso to Article 243 ZB of the Constitution in its application to the Union Territories enables the President by notification to direct that the provisions of Part IX A of the Constitution shall apply to Union Territory or part thereof subject to such exceptions, modifications as he may specify in the notification. However, the exceptions and modifications that are to be specified are not to be contrary to or in derogation to the provisions of the Constitutional scheme.
(d) The exceptions and modifications that are to be specified by the President in terms of the proviso to Article 243 ZB are to be in consonance with the Constitutional scheme and exercise of excessive delegation, is impermissible and is to be invalidated.
(e) A delegatee can exercise powers to extent of delegation as held in AIR, 1951, SC 332.
(f) The Presidential notification dated 24.05.1994 does not in any manner confer on legislature to make laws conferring voting rights to the nominated members.
(g) The nominated members to House of Municipal Corporation not having the right to vote by the prohibitive provisions of the Constitution cannot be conferred such rights in exercise of a legislative enactment.
(h) The Parliament would be a legislature for the Union Territory and would be controlled by the provisions of Article 243 ZB insofar as the Union Territory of Chandigarh is concerned--Therefore, provisions of Section 4 (3) (ii) of the MC Act are liable to be invalidated to the extent voting rights have been conferred on nominated members of Municipal Corporation, Chandigarh as these are clearly in violation of the Constitutional mandate of the proviso to Article 243 R (2) (a). (Paras 18 and 55)
(B) Delegated Legislation--Delegated legislation does not confer powers on the executive to issue notification which are in derogation of the legislative intent itself--Delegated legislation involves delegation of rule making power of legislation and authorizes an executive authority to bring in force such rules, regulations and notifications for which it is authorized--The discretion conferred on the executive by way of delegated legislation is much wider--Such power to do acts by making rules, regulations and issuing notifications, however, are to be exercised within the four corners of the powers that are conferred--Besides, these do not empower the executive to do all such things which could be done by the legislature itself. (Para 33)
S.S. Saron, J.
1. The petitioner Satinder Singh by way of the present petition under Articles 226/227 of the Constitution of India seeks issuance of a writ in the nature of certiorari/mandamus for declaring the provisions of Section 4 (3) (ii) of the Punjab Municipal Corporation Act, 1976 (as extended to the Union Territory, Chandigarh), Extended to Chandigarh by: ‘The Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994(Act No.45 of 1994)’ w.e.f. 24th May, 1994 (‘MC Act’ - for short) as ultra vires and unconstitutional; besides, being totally contrary to the provisions of Article 243 R of the Constitution of India.
2. The petitioner is a law graduate and is practising as an advocate at the District Courts, Chandigarh. He was elected as a Municipal Councillor of the Municipal Corporation, Chandigarh in the elections held in December, 2011. He is an income tax payee and a committed social worker. He has been raising issues relating to society and the common man. He has donated blood more than 60 times till date. Keeping in view his keen interest in the cause of social service, he was elected as a Municipal Councillor from Ward No.18 of the Municipal Corporation, Chandigarh.
3. Mr. H.C. Arora, Advocate filed CWP No.6095 of 2017 claiming the same relief. An objection has been raised by the respondents that Sh. Arora had earlier filed CWP No.5552 of 2007 on the same subject matter, which was withdrawn by him on 16.12.2008 and therefore, he is not entitled to file a fresh petition.
4. Sh. Arora submitted that his intention is to press before this Court that nominated members of the House of Municipal Corporation are not entitled to vote in the meetings of the House. Since the said cause is being pursued in the present petition, he does not press his petition i.e. CWP No.6095 of 2017 which may be dismissed as withdrawn. However, he be given liberty to assist the Court in the present case.
5. Liberty is granted to Sh. Arora, Advocate to assist the Court in the present case.
6. The respondents No.4 to 12 in the petition were nominated Councillors of the Municipal Corporation, Chandigarh; however, their term has since expired. The nominated Members who are at present working and functioning as such were arrayed as parties in CWP No.6095 of 2017 filed by Sh. H.C. Arora, Advocate. In the circumstances, Sh. Baltej Singh Sidhu, Advocate for the petitioner Satinder Singh on 20.04.2017 submitted that the names of respondents No.4 to 12 in his petition be struck off from the array of respondents and on his oral request, respondents No.4 to 12 in CWP No.6095 of 2017 were impleaded as respondents No.4 to 12 in the present petition on 20.04.2017 itself. Mr. Baltej Singh Sidhu, Advocate was asked to file fresh memo of parties, which amended memo of parties has since been filed.
7. Mr. Brijeshwar Singh Jaswal, Advocate appearing for respondents No.4 to 12 in the connected CWP No.6095 of 2017 accepted notice on behalf of respondents No.4 to 12 in the present petition as well.
8. The grievance of the petitioner Satinder Singh is that the nominated members of the House of the Municipal Corporation, Chandigarh have been given the right to vote in proceedings of the House, which according to him is impermissible in law and the notification dated 24.05.1994 issued by the Government of India, Ministry of Home Affairs in this regard is contrary to and in conflict with the provisions of Article 243 R of the Constitution. Therefore, the same is liable to be invalidated to the extent right of vote has been given to the nominated Members in the meetings House of the Municipal Corporation, Chandigarh.
9. Written statement of Sh. KPS Mahi, Additional Secretary, Department of Local Government, UT, Administration, Chandigarh has been filed on behalf of respondent No.2; besides, written statement of Sh. Manoj Khatri, HCS, Joint Commissioner-I, Municipal Corporation, Chandigarh on behalf of respondent No.3 has also been filed.
10. In the written sta
