SARDAR JASVINDER SINGH Vs. STATE OF H.P.

JUDGEMENT

(1.) Petitioners have filed this writ petition challenging the order of respondent No. 1 as contained in Annexure P -4, dated 5.7.2003. All of them were nominated as councillors to Municipal Corporation, Shimla under Section 4(3) of the Himachal Pradesh Municipal Corporation Act, 1994, vide notification dated 10.10.2002, Annexure P -l. Vide Annexure P -4, it was ordered that the petitioners shall cease to hold the office as councillor of the said Corporation, with immediate effect.

(2.) At the time of hearing of this writ petition, learned Counsel for the parties were not at variance that the amendment carried out to Section 4 of the Himachal Pradesh Municipal Corporation Act, 1994 vide H.P. Ordinance No. 3 of 2003 (Annexure P -2), has been incorporated in the said Act vide the Himachal Pradesh (Amendment) Act, 2003, i.e. Act No. 6 of 2003. For ready reference, portion of this Act which is relevant for determination of the present writ petition is extracted hereinbelow: - "(3 -A) The State Government may, by notification, nominate as Councillors not more than three persons, having special knowledge or experience of municipal administration: Provided that a person who contested and lost the immediately preceding election of any Corporation shall not be nominated by the State Government as a Councillor of that corporation or any other Corporation during its existing term: Provided further that a Councillor nominated under this sub -section whether before or after the commencement of the Himachal Pradesh Municipal Corporation (Amendment) Act, 2003 shall hold office during the pleasure of the State Government, but not beyond the term of Corporation as provided for in sub -section (1) of Section 5 of this Act. (3 -B) The nominated Councillors referred to in sub -section (3 -A) and the Commissioner shall have the right to attend all the meetings of the Corporation and to take part in the discussion therein but shall not have any right to vote."

(3.) Mr. Sharma, learned Counsel for the petitioners submitted that duration of the Municipal Corporation under Section 5(1) of the Himachal Pradesh Municipal Corporation Act, 1994 (hereinafter referred to as "the Act"), is five years from the date of its first meeting, unless dissolved sooner under Section 404 thereof. According to him, this tenure is prescribed under Article 243 -U of the Constitution of India. In the context of Annexure P -4, Mr. Sharma pointed out that none of his clients had incurred disqualification under Section 8 of the Act, so as to enable respondent No.1 to order their removal under Section 34 thereof. Alternatively and without conceding, he further pointed out that in case Section 34,of the Act was to be invoked by the said respondent, in such a situation, show cause notice having not been issued, therefore, by necessary implication, respondent No.1 admits that it is not the case of removal of the petitioner under Section 34 of the Act.