Shiv Singh Sen vs State Of Himachal Pradesh & Others

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has, inter alia, prayed for the f ll wing reliefs:-

“(i) That the order dated 07.07.2025 Annexure P-6 passed by the respondent No.2, hereby the appeal of the petitioner has been dismissed on merit may kindly be quashed and set aside.

(ii) That the objection raised by the petitioner vide Annexure P-2 may kindly be allowed.”

The  case  of  the  petitioner  is  that  State  Election Commission, Himachal Pradesh, vide Notification dated 24.05.2025 (Annexure P-1), in exercise of powers conferred under Sections 9 and 10 of the Himachal Pradesh Municipal Corporation Act, 1994 as well as  Sections  10  and  281  of  the  Himachal  Pradesh  Municipal Corporation Act, 1994 as also the Himachal Pradesh Municipal Corporation Election Rules, 2012 and the Himachal Pradesh Municipal Election Rules, 2015, issued programme of delimitation of

wards of Urban Local Bodies in the State (excluding Municipal Corporation Shimla). The programme issued by the State Election Commission is reproduced hereinbelow:-

“Notification

The State Election Commission in exercise of the powers vested in Article 243ZA of the Constitution of India, Section 9 and 10 of the H.P. Municipal Corporation Act, 1994 and Section 10 and 281 of the H.P. Municipal Act, 1994 read with Rules 6 and 10 of the H.P. Municipal Corporation Election Rules, 2012 and he H.P. Municipal Election Rates 2015 hereby issued the following program for delimitation of wards of Urban Local Bodies in the State (excluding Municipal Corporation Shimla):

Sr. Process                                                                                                            Date

No.

1.Publication of draft proposal for delimitation of                                     2nd June, 2025.

wards

2.Submission of objections or suggestions by the By                                  9th June, 2025.

residents of the Municipal area

Disposal of objections or suggestions by the By                                          16th June, 2025.

Deputy Commissioners

Filing of appeals against the orders of the Deputy                                 Within 7 days from

Commissioner   before   concerned Divisionalpassing of                          the orders by

Commissioner.  the Deputy Commissioner.

Disposal   of   appeal   by   the Divisional Commissioner.                      Within 5  days  from  the

Commissioner.                                                                                                    filing of appeal.

Issue of final delimitation orders by the Deputy Commissioner.           On  or before 1st July,  2025.

Reservation of seats shall be undertaken By                                             11th July, 2025.

Submission of report of final reservation order by                                  15th July, 2025.

the Government to Commission.

If no objection is received or no appeal is file within stipulated period, the concerned Deputy Commissioner may issue final de-limitation orders and start process for reservation and rotation of wards. After finalization of de-limitation and reservation of wards, order to the effect should immediately be sent to the Government by the Deputy Commissioner concerned as required under Sub-Rule 11 of the Rule 10, so that the Government may provide a copy of the final reservation order to the Commission in accordance with Rule 11 of the Rules ibid.”

According to the petitioner, he filed objections with regard to delimitation of wards of Municipal Council, Sundernagar. The objections were filed by the petitioner on 12.06.2025 and the same were heard by Deputy Commissi ner on 11.06.2025. The objections of the petitioner were rejected by the Deputy Commissioner on 16.06.2025. The efore, the petitioner in terms of Annexure P-3 received the rejection order qua his objections on 21.06.2025 and he immediately filed are appeal before the Divisional Commissioner within the time frame mentioned in the Notification. The appeal filed by the petitioner was returned back to him with a Note t ereupon that the same was time barred. The petitioner filed CWP No.10661 of 10661 of 2025, titled Shiv Singh Sen Versus State of Himachal Pradesh and others, which was disposed of by this Court vide order dated 04.07.2025, with the direction to the Appellate Authority to entertain the appeal and thereafter, pass appropriate order thereupon after hearing the parties. The relevant portion of the judgment is quoted hereinbelow:-

“3. The grievance of the petitioner is that an appeal filed by him under Rule 8 of the Himachal Pradesh Municipal Election Rules against the order passed by the Deputy Commissioner, Mandi, District Mandi, H.P., dated 16.06.2025, copy whereof is appended with this petition as Annexure P-4, has been returned back to his learned counsel as per Note appended on the first page of Annexure P-4, on the ground that in terms of the Notification issued by the State Election Commission, dated 24.05.2025, the appeal was time barred.

Learned counsel for the petitioner submitted that the appeal was not time barred, for the reason that the copy of the order passed by the Deputy Commissioner was received by the petitioner only on 21.06.2025 and the petitioner immediately filed the appeal within the period of limitation there f.

Be that as it may, his Court is of the considered view that as the pe i ioner was having a statutory right to prefer an appeal in te ms of the provisions of the relevant Act and the R les framed thereunder, the Appellate Auth rity, was obliged to receive the same and decide the same by passing same order. In other words, the appeal preferred by the petitioner could not have been returned to the petitioner through Counsel as has been done in the present case. The Office of the Divisional Commissioner was bound to register the matter and thereafter, in case the Authority was of the considered view that the appeal was time barred, it could have dismissed the appeal on that count. But, this ought to have been done in a manner which is akin to the performance of duty by a Quassi Judicial Authority, that is to say that after hearing the petitioner and thereafter, by way of passing a reasoned order. The appeal could not have been returned in the mode and manner in which the same has been done.

Accordingly, this petition is allowed on this short count and direction is issued to the Divisional Commissioner, Mandi, District Mandi, H.P. to entertain the appeal and thereafter, pass appropriate orders thereupon after hearing the parties. It is clarified that this Court has not returned the findings as to whether the appeal preferred by the petitioner is within limitation. All that this Court is observing is that these issues cannot be decided by appending Notes on the grounds of appeal preferred by the parties and have to be adjudicated by passing appropriate orders as the aggrieved party has a right to assail the order so passed be ore the next available Fora.

With these observations, the petition stands disposed of. As the judgment has been dictated in the presence of learned Additional Advocate General, he undertakes to info m he order passed by this Court both to the Deputy Commissioner Mandi as well as the Divisional Commissioner, Mandi, so that no order prejudicial to the interest of the petitioner is passed in the interregnum. The petitioner undertakes to present the order passed by the Court today before the Divisional Commissioner, Mandi by 05.07.2025. The Divisional Commissioner, Mandi, thereafter, shall immediately take up the matter and decide the same in accordance with law. Pending miscellaneous applications, if any, also stand disposed of.”

Pursuant thereto, Divisional Commissioner, Mandi has passed order dated 07.07.2025 (Annexure P-6), in terms whereof, the appeal filed by the petitioner has been dismissed by holding that as the appeal filed by the petitioner against the order of the Deputy Commissioner was filed beyond the period of limitation, therefore, the same was time barred.

Feeling aggrieved, the petitioner has approached this Court.

Learned counsel for the petitioner submitted that though, undoubtedly in terms of Notification dated 24.05.2025, an aggrieved person is to assail the order of Deputy Commissioner before Divisional Commissioner within seven days from the passing of order by the Deputy Commissioner, but the seven days have to be construed as from the date when the order is made available to the person concerned. He submitted that without the order of Deputy Commissioner being in physical p ssessi n of someone, it is not understood as to how the same can be assailed within seven day. Learned counsel submitted that in the present case also, the copy of the order passed by the Dep ty Commissioner was made available to the petitioner n 21.06.2025 by the Office of Municipal Council, Sundernagar, which is evident from Annexure P-3. He submitted t at t ereafter, the petitioner preferred an appeal on 25.06.2025, i.e. wit in seven days as from the date of receipt of the order, yet, in terms of the impugned order the appeal has been dismissed as time barred, which order of the Authority is not sustainable in law.

Learned Additional Advocate General, on the other hand, submitted that Notification dated 24.05.2025 and the time frame mentioned therein is in-consonance with the Himachal Pradesh, Municipal Rules, 2015, which clearly contemplate that an appeal against the order of Deputy Commissioner is to be filed within seven days from the passing of the order by the Deputy Commissioner. He submitted that as the petitioner was aware of the order passed by the Deputy Commissioner on 16.06.2025, therefore, he ought to have file appeal within seven days. On the directions of this Court, he has also handed over the Instructions received from District Magistrate as well as the Office of Divisional Commissioner, Mandi, which are taken on record and by placing reliance thereupon also, he submitted that as neither the Rules nor the Notification give any benefit of the days that might be consumed in obtaining the copy of the order, theref re, everything has to be read strictly and the order impugned cannot be doubted. Accordingly, he prayed that the petition be dismissed.

Learned co nsel appearing for the State Election Commissioner also s bmitted that in terms of the Notification which itself is based up n the Rules, i.e. Himachal Pradesh Municipal Election Rules, 2015, as only seven days are provided therein to assail t e order of the Deputy Commissioner as from the date of passing of the order, because the petitioner did not challenge the order within seven days, the impugned order of the Appellate Authority cannot be faulted with.

I have heard learned counsel for the parties and have also carefully gone through the petition as well as documents appended therewith as also the Instructions that have been imparted to learned Additional Advocate General by the Divisional Commissioner, Mandi as well as Deputy Commissioner, Mandi.

It is not in dispute that the arguments were heard by the Deputy Commissioner, Mandi on the objections filed by the petitioner against the delimitation of certain wards of Municipal Council, Sundernagar, on 12.06.2025. It is also not in dispute that thereafter, Deputy Commissioner fixed 16.06.2025 as the date for the announcement of the order. It is not the case of the respondents that after the order was announced by the Deputy Commissioner, the petitioner was handed over a copy thereof either on 16.06.2025 or before 21.06.2025.

When this case was listed n 11.07.2025, this Court had passed the following order:-

“CWP No. 11199 of 2025 & CMP No. 16055 of 2025

Notice. Mr. Pushpender Jaswal, learned Additional Advocate General and Mr. Surender K. Sharma and Mr. Rajesh Kashyap, learned Counsel, accept notice on behalf of resp ndents No. 1 to 3 and 5, respondent No. 4 and respondent No. 6, respectively.

Taking into consideration the issue involved in this petition, the case is ordered to be listed on 14.07.2025, at the first instance, to enable learned Additional Advocate General to inform the Court as to when copy of order dated 16.06.2025 was served upon the petitioner.”

It is in response thereto, that today Instructions were placed on record from the Divisional Commissioner as well as Deputy Commissioner. A perusal of these Instructions demonstrates that they are conspicuously silent with regard to the date when the order passed by the Deputy Commissioner was conveyed physically to the petitioner by the Office of the Deputy Commissioner. Therefore, this Court has to take it that the order was made available to the petitioner only on 21.06.2025 in terms of Annexure P-3, by the Municipal Council.

That being the case, this Court is of the considered view that the period of seven days as is mentioned in Notification dated 24.05.2025, has to be construed from the date when the order was received physically by the petitioner and no other construction in this regard is possible. The contention of learned Additional Advocate General as well as learned counsel for the State Election Commissioner that the seven days peri d mentioned in Notification dated 24.05.2025 is to be coun ed from the date of passing of the order by the Deputy Commissioner, is not accepted. An appeal cannot be filed in the absence of the impugned order being in the hands of the aggrieved party. Until and unless, the impugned order is in the hands of the aggrieved party, it cannot be said to be aware of t e reasons which have led to the passing of the impugned order. Once t e party gets hold of the physical copy of the order, it is only thereafter, that it can go through the same and make an opinion as to whether it intends to assail the same or not.

In the absence of the order being in possession of the petitioner, it is not understood as to how he could have assailed it within seven days as from the date of passing of the order by the Deputy Commissioner.

Therefore, the rejection of the appeal of the petitioner by the Divisional Commissioner, Mandi, on the ground that the same is time barred is not sustainable in the eyes of law. The myopic construction which has been given to the contents of the Notification dated 24.05.2025, by ignoring the fact that an appeal cannot be filed by an aggrieved party until and unless the impugned order is actually physically handed over to the parties is bad in law. Learned Divisional Commissioner erred in not appreciating that until and unless the order was is in possession of the aggrieved party, there was nothing with the aggrieved party which could be assailed by it by way of an appeal or otherwise. The Authority erred in not appreciating that the time which is c nsumed otherwise also in obtaining such like orders, has o be excluded while counting the period of limitation in terms of the Law of Limitation also.

Thereftre, on account of the above reasons, this writ petition is allowed. Order dated 07.07.2025 (Annexure P-6), passed by learned Divisional Commissioner is quashed and set aside and t e matter is remanded back to the learned Divisional Commissioner to decide t e same afresh on merit by construing that the appeal was filed within limitation. As all the parties are present in the Court through learned counsel, they are directed to appear before learned Divisional Commissioner on 17.07.2025, who is further directed to decide the appeal within a period of five days as from 17.07.2025. The petition stands disposed of. Pending miscellaneous applications, if any, also stand disposed of.