Madan Lal Katyal vs Deputy Commissioner Karnal

V. Ramaswami, C.J., and D.V. Sehgal, J.

This is a petition for the issuance of a direction restraining the Deputy Commissioner, Karnal, from holding a meeting of the Municipal Committee, Nilokheri of the elected members for taking oath of allegiance and also for electing the President and Vice president. There is a further prayer to quash the nomination of respondents Nos. 3 and 4 on the ground that their election was contrary to Rules. The learned counsel for the petitioner has relied on rule 70(1) of the Haryana Municipal Election Rules, 1978 which reads as under :

"70. Oath of allegiance and the election of President etc (1) The Deputy Commissioner or any gazetted officer appointed by him in this behalf shall, within a period of fourteen days of the publication of the notification of the names of the members elected to a committee convene the first meeting of the newly constituted committee at fortyeight hours'' notice to be delivered at their ordinary place of residence. The notice shall clearly state that the oath of allegiance will be administered to the members present, and that the election of the President and Vice President or Vice President, shall be held in the meeting. The convener shall administer the oaths to the members and shall preside over the meeting till the election of the President and the VicePresident. Such meetings shall be deemed to be a validly convened meeting of the committee. Notwithstanding anything contained in any byelaws, made under the provisions of section 31 of the Haryana Municipal Act, 1973, the administration of the oath of allegiance and the election of the President and VicePresidents shall be recorded as part of the proceedings in the minutes of the meetings."

The first submission of the learned counsel was that in the process of election of President and VicePresident the nominated members had also taken part and that was contrary to rule 70 of the said Rules. The extracted portion of rule 70 above shows that within a period of 14 days of the publication of the notification of the names of the members elected to a committee the first meeting of the newly constituted committee should be convened. The words `fourteen days'' qualifies `election'' to the committee. The meeting is to be convened of the `newly constituted committee'' and not of the elected members alone. The two phrases used "elected to the committee" and `newly constituted committee" give two different meanings, one relating to the elected members and the other relating to the members of the committee including the nominated members. The words "elected to the committee" are introduced in the Rules obviously for the purpose to fix the fourteen days'' time from the date of ejection. We are, therefore, unable to agree with the learned counsel that the nominated members cannot take part in the election.

The next submission of the learned counsel was that fourtyeight hours'' notice had not been given to him for holding the election of the President and the Vice President. According to the learned counsel, the notice was served on him only at 4 P.M. on 10.10.1987 and the election in question was held at 9.30 A.M. on 12.10.1987, i.e. within a period of forty eight hours. This submission is also untenable for more than one reason. Firstly, the petitioners had taken part in the election, contested for the office of President and he was defeated. Therefore, now he is estopped from contending that proper notice had not been given to him. The notice of fortyeight hours can be waived by the members and if they are present it is deemed that that is waived. The other way of looking at the things is that fortyeight hours is two days notice. The notice served on 10.10.1987 is to be taken as one day, 11.10.1987 is the second day, and the election was held on the third day, i.e. 12.10.1987.

The next submission of the learned counsel was that under section 10 of the Haryana Municipal Act, 1973, a Balmiki could not be nominated if a person belonging to that community had already been elected to the committee. But in this case, factually the nominated candidate did not belong to Balmiki community. He belonged to Mazhabi community. In fact, though the learned counsel attempted to say that both Balmikis and Mazhabis are the same, we find from the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. (Appendix I Part V) that these are separately shown as two different communities at Sr. Nos. 2 and 23 of the said part V relating of Haryana. In the circumstances, there is no substance in this contention either. The writ petition accordingly fails and is dismissed. No order as to costs.