2020 (12) TMI 1386 - HC - Indian Laws

Cancellation of process of determining roster undertaken by Sub Divisional Officers (Civil) in District Hamirpur on the ground that said process was not in conformity with Rule 10 of Election Rules and provisions of the Act - HELD THAT - Election Rule 10 prescribes the Deputy Commissioner as an authority who shall issue notice under Rule 10 (8) and who shall give wide publicity with respect to reservation made by him under Rule 10(11). Deputy Commissioner is Officer who is also District Election Officer (Municipalities) under Rule 32(1) of Himachal Pradesh Municipal Election Rules 2015 and he has no authority to delegate his powers conferred upon him under Rule 10 of Election Rules. Therefore he was not empowered to appoint or depute SDO (Civil) to undertake the process under Rule 10 of Election Rules. Therefore his action authorizing SDO (Civil) to undertake process under Rule 10 was contrary to law. In order to attract Section 18 of the Himachal Pradesh General Clauses Act SDO (Civil) subordinate to Deputy Commissioner at the time of undertaking the process under Rule 10 of Election Rules must be lawfully performing the duties of the office of Deputy Commissioner as District Election Officer (Municipalities). In present case while undertaking the process under Rule 10 of Election Rules SDO (Civil) was not working as a subordinate lawfully performing the duties of office of Deputy Commissioner nor he could be as Deputy Commissioner acting as District Election Officer (Municipalities) was not empowered to delegate his powers as District Election Officer and appoint his subordinate to exercise his function. It is settled position of law that power to do includes the power to undo. As provided under Section 20 of Himachal Pradesh General Clauses Act power to make an order includes power to add to amend vary or rescind the said order. Therefore Deputy Commissioner by passing impugned order dated 27.8.2020 has not exceeded his jurisdiction rather has acted lawfully in order to rectify his mistake and to correct the wrong as Act and Rules do not empower him to delegate his power to his subordinates and to authorize SDO (Civil) to undertake process under Rule 10 of Election Rules. As the authority to undertake the process under rule 10 of Election Rules was illegal and contrary to law therefore process for reservation and rotation of seats undertaken by SDO (Civil) was also illegal null and void and therefore cancellation thereof by Deputy Commissioner does not warrant any interference. There is nothing on record to substantiate the plea of the petitioner that Deputy Commissioner has acted malafide or impugned action is violative of Article 14 of the Constitution of India. For discussion hereinabove his action and decision cannot be said to be arbitrary or contrary to law hence warrants no interference. Petition dismissed.

Summary

Issues Involved:
1. Legality of the Deputy Commissioner's cancellation of the reservation and rotation process undertaken by the Sub Divisional Officers (Civil).
2. Authority of the Deputy Commissioner to delegate his powers under Rule 10 of the Himachal Pradesh Municipal Election Rules, 2015.
3. Applicability of Section 18 of the Himachal Pradesh General Clauses Act.
4. Allegations of arbitrariness, malafide action, and violation of Article 14 of the Constitution of India.

Issue-wise Detailed Analysis:

1. Legality of the Deputy Commissioner's cancellation of the reservation and rotation process:
The Deputy Commissioner of Hamirpur cancelled the process of determining the roster for reservation and rotation of seats undertaken by the Sub Divisional Officers (Civil) on the grounds that it was not in conformity with Rule 10 of the Himachal Pradesh Municipal Election Rules, 2015. The Deputy Commissioner decided to undertake the process himself, issuing a new notice for the same. The court upheld this cancellation, stating that the Deputy Commissioner acted within his jurisdiction to rectify procedural irregularities.

2. Authority of the Deputy Commissioner to delegate his powers:
The court examined whether the Deputy Commissioner had the authority to delegate his powers to the Sub Divisional Officers (Civil) under Rule 10 of the Election Rules. It was determined that the Deputy Commissioner, who is also the District Election Officer (Municipalities), did not have the authority to delegate his powers to his subordinates. The court found that the Deputy Commissioner's action of authorizing the SDO (Civil) was contrary to law and, therefore, invalid.

3. Applicability of Section 18 of the Himachal Pradesh General Clauses Act:
The petitioner argued that Section 18 of the Himachal Pradesh General Clauses Act empowered the SDO (Civil) to perform the duties of the Deputy Commissioner. However, the court clarified that Section 18 applies only when the subordinate is lawfully performing the duties of the superior in their absence. In this case, the SDO (Civil) was not lawfully performing the duties of the Deputy Commissioner but was acting on unauthorized delegation. Hence, Section 18 was not applicable.

4. Allegations of arbitrariness, malafide action, and violation of Article 14:
The petitioner claimed that the Deputy Commissioner's actions were arbitrary, malafide, and violative of Article 14 of the Constitution of India. The court found no evidence to support these claims. The Deputy Commissioner's actions were deemed lawful and within his jurisdiction to correct procedural mistakes. The court held that the process undertaken by the SDO (Civil) was illegal and void, and its cancellation was justified.

Conclusion:
The court dismissed the petition, affirming that the Deputy Commissioner acted within his legal rights to cancel the unauthorized process and undertake the reservation and rotation of seats himself. The Deputy Commissioner's actions were neither arbitrary nor malafide, and there was no violation of Article 14 of the Constitution. The court upheld the principle that the power to do includes the power to undo, allowing the Deputy Commissioner to rectify his mistake lawfully.