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Himachal Pradesh HC: Process Can Be Cancelled By Deputy Commissioner to Rectify Delegation of Powers

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On 18th December 2020, a Single Judge Bench consisting of Hon’ble Mr. Justice Vivek Singh Thakur heard the case of Kamal Kumar v. State of Himachal Pradesh & others. The petition was filed against the cancellation of the process for reservation and rotation of seats for the members of municipalities, by the Deputy Commissioner undertaken by the Sub Divisional Officers (SDMs). The petition also sought to condemn the fresh process undertaken by the Deputy Commissioner on the ground that the action of the Deputy Commissioner was arbitrary, mala fide, and in violation of Article 14 of the Indian Constitution.

Facts of the case

In Himachal Pradesh, reservation and rotation of seats of members of municipalities (Nagar Parishads and Nagar Panchayats) had been undertaken as prescribed by the State Election Commission under Section 281 of Himachal Pradesh Municipal Act, 1994. The process of reservation and rotation was undertaken by the Deputy Commissioners of their respective districts as provided under Rule 10 of Himachal Pradesh Municipal Election Rules, 2015.

The Deputy Commissioner, Hamirpur had authorized Sub Divisional Officers (Civil) (SDOs) to undertake the process of reservation and rotation of municipalities (Nagar Panchayats and Nagar Parishads) in their respective sub-divisions. The said process was undertaken and a schedule of reservation of seats of members of Municipalities was declared. 

The Deputy Commissioner cancelled the process of determining the schedule undertaken by the Sub-Divisional Officers, on the ground that the process was not in accordance with Rule 10 of Election Rules and provisions of the Act, and thus undertook the process himself. 

Contentions of the petitioner

Mr. Anoop Rattan, learned counsel for the petitioner, contended that once the process is delegated and undertaken by the SDOs, the Deputy Commissioner cannot undo the exercise without any reason/evidence placed on record, in order to justify such an action. 

The petitioner placed reliance on Dravida Munnetra Kazhagam (DMK) Vs. Secretary, Governor’s Secretariat and others, (2020) 6 SCC 548, which held that, “any decision sought and rendered will not amount to ‘calling in question an election’ if it subserves the progress of election and facilitates the completion of election and action taken or order issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies.”

Contentions of the Respondent

Mr. Desh Raj Thakur, learned Additional Advocate General, referred to the case of Jagdish Chand Memorial Trust Vs. State of Himachal Pradesh, and contended that the cancellation of the process by the Deputy Commissioner was justified for rectifying procedural irregularity which he was competent to do so within his powers, and the Doctrine of Promissory Estoppel was not applicable in the case. 

The Counsel referred to the case of Indian Railway Construction Co. Ltd. Vs. Ajay Kumar, (2003) 4 SCC 579, which held that, “He who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers”. In this case, the petitioner failed to prove the invalidity of the act undertaken by the Deputy Commissioner. 

Court’s Analysis

The Court observed that the Deputy Commissioner who is also District Election Officer (Municipalities) under Rule 32(1) of Himachal Pradesh Municipal Election Rules, does not have the power to delegate powers conferred upon him under Rule 10 of Election Rules. Therefore, the action of delegation of the process to the SDOs by the Deputy Commissioner was contrary to the law. 

Further, it was not the case that the Deputy Commissioner was unable to perform his duties or was on leave, but in fact his office was occupied. Therefore, the SDOs were not performing the duties of the office of Deputy Commissioner in place of the Deputy Commissioner, as the Deputy Commissioner was available. Thus, the SDOs were never authorized, appointed or deputed to perform the duties of the office of Deputy Commissioner.

The Court further observed that according to the well settled position of law, the power to do, also includes the power to undo. The Court referred to Section 20 of Himachal Pradesh General Clauses Act, and observed that the power to make an order, also includes the power to add, amend, vary or rescind the said order. Therefore, the Deputy Commissioner by cancelling the process had acted within his jurisdiction, and acted lawfully in order to rectify his mistake of delegating powers to the SDOs. 

Court’s Decision

The Court held that since the delegation of power by the Deputy Commissioner to the SDOs was illegal and void, therefore the Court need not interfere in the cancellation done by the Deputy Commissioner. Further, the action undertaken by the Deputy Commissioner was not mala fide, and was not in violation of A.14 of the Indian Constitution. Thus, the petition was dismissed by the Court. 

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