TMI Blog2020 (12) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to undertake the said process himself. 4. A separate notice dated 27.8.2020 under Rule 10 (8) of Election Rules (Annexure P-1) was also issued by Deputy Commissioner, notifying the date as 31.8.2020 for undertaking the process under Rule 10 of Election Rules. 5. On 29.8.2020, Department of Urban Development to the Government of Himachal Pradesh has issued clarification regarding reservation of wards for women vide communication dated 29.8.2020 (Annexure P-5), clarifying the provision and process to be undertaken for reservation of wards for women in Municipalities. Vide notification dated 29.8.2020 (Annexure P-6), State Election Commission of Himachal Pradesh has extended the date for reservation of wards till 5.9.2020. 6. Present petition has been preferred against cancellation of process by Deputy Commissioner which was undertaken by SDM, Nadaun in pursuance to the authorization dated 10.8.2020 by Deputy Commissioner and also assailing fresh process undertaken by Deputy Commissioner in pursuant to order dated 27.8.2020 (Annexure P-1) and clarification dated 29.8.2020 (Annexure P-5), referred supra, on the ground that action of Deputy Commissioner is arbitrary, malafide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case of mala fide or arbitrary exercise of power being made out or statutory body has been shown to have acted in breach of law. 10. Mr. Desh Raj Thakur, learned Additional Advocate General has submitted that there is nothing on record to establish that exercise of power by Deputy Commissioner for passing impugned order and undertaking the process of reservation again by himself, are arbitrary, malafide or contrary to law, rather he submits, material on record reveals that, in view of provisions of H.P. General Clauses Act and Election Rules, 2015, Deputy Commissioner in order to rectify the mistake has acted legally and he was and is competent to do so as power to do also includes to undo. He has further submitted that Rule 10 of Election Rules prescribed the Deputy Commissioner as an authority to undertake the process and, as Deputy Commissioner was not empowered to delegate the said power to his subordinate, therefore, Section 18 of H.P. General Clauses Act is not applicable in present case. 11. Learned Additional Advocate General has also referred judgment dated 13.12.2017 passed by Division Bench of this Court in CWP No. 475 of 2017, titled Jagdish Chand Memorial Trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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, whereas petitioner has failed to establish either of these ingredients necessary to invalidate or nullify the impugned act and order of Deputy Commissioner, Hamirpur. 14. Referring pronouncement of Apex Court in State of Jharkhand and others Vs. Ambay Cements and another, (2005) 1 SCC 368, Learned Additional Advocate General has canvassed that whenever the statute prescribes that a particular act is to be done in a particular manner, such manner would be mandatory, as it is a cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. 15. Section 18 of Himachal Pradesh General Clauses Act reads as under:- 18. Official chiefs and subordinates.--In any Himachal Pradesh Act, a power to issue notification or make orders, rules, or bye-laws relative to the chief or superior of an office shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior, to presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chief or superior of an office shall apply to the deputies or subordinates, lawfully performing the duties of that office in the place of their superior, to prescribe the duty of superior. Therefore, 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. 19. It is not a case that Deputy Commissioner was on leave or not available for performing his duty for any other reason and thus SDO (Civil) was deputed to perform duties in the office of Deputy Commissioner in place of Deputy Commissioner, but he was acting as an office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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