State Election Commission mum over legal notice sent by HC Advocate
A proviso added in State MC law in the year 2020 prohibits filling of casual vacancies of Mayor - Hemant Kumar
Chandigarh --
Earlier this month on Feb 4, the State Election Commission (SEC), Haryana sounded poll bugle for General Election to 8 Municipal Corporations, 4 Municipal Councils and 21 Municipal Committees along with Bye-Elections to 2 vacant posts of Mayors in 2 Municipal Corporations of Ambala and Sonipat along with 3 vacant posts of President in 1 Municipal Council and 2 Municipal Committees. The last date for filing nominations was Feb 17 and scrutiny scheduled for Feb 18 with last date of withdrawal of candidature coupled with publication of list of final contesting candidates along with allotment of poll symbols being Feb 19. The Polling is scheduled for March 2 except as regards MC Panipat where voting is on March 9 and the counting for all above municipalities scheduled for March 12.
Meanwhile, Hemant Kumar, an Advocate at Punjab & Haryana High Court and a registered elector/voter of Ambala Municipal Corporation on Feb 5 sent a legal notice to SEC, Haryana against the Bye-Election announced for filling posts of Mayor in Municipal Corporations of Ambala and Sonipat which got vacant in October last year after then directly-elected Mayors of both MCs viz. Shakti Rani Sharma of Ambala MC and Nikhil Madaan of Sonipat MC were elected as MLAs as BJP candidates from Kalka and Sonipat Assembly Constituencies respectively.
In the legal notice, Hemant has quoted the second proviso in Section 13(1) of Haryana Municipal Corporation Act (HMCA), 1994 (i.e. the provision pertaining to Filling of casual vacancies in MCs) which stipulates that Provided further that the provisions of this section shall not apply in the case of vacancy occurred in the office of the Mayor.
Hence, as per the above legal provision, Bye-Election can’t be conducted to fill up casual vacancy of Mayor in Municipal Corporations in the State of Haryana, quipped Hemant. In fact, the aforementioned second proviso was added in Sec 13(1) of HMCA, 1994 with effect from Dec, 2020.
Hemant further revealed that although Rule 68 of Haryana Municipal Corporation Election Rules, 1994 provides for conduct of Election to fill casual vacancy within six months from the date of occurrence of vacancy and also there is no embargo/ prohibition in this Rule regarding filling of vacancy pertaining to the office of the Mayor.
However, it is trite law and also judicially settled in a number of Authoritative Pronouncements by a catena of Judgments of Supreme Court of India as well as various High Courts that in case of any sort of inconsistency between the Provisions of a duly enacted Act vis-a-vis the Rules framed under such Act, it is the relevant provision of the Act that would prevail and would be applicable and not what is mentioned in such Rule.
Noteworthy that Haryana Municipal Corporation Election Rules, 1994 have been framed by the Governor of Haryana ( read Haryana Government) in exercise of powers conferred under Section 32 of HMCA, 1994.
Even otherwise, if still SEC, Haryana for whatever reasons, wanted to conduct Bypolls for two vacant posts of Mayors in Ambala and Sonipat MCs, both of which were declared vacant with effect from 8 Oct 2024, when erstwhile Mayors of both above MCs got elected as MLAs, then as per Section 9(5) of HMCA, 1994, the date for filling such casual vacancies, should not have been later than two months after the time of occurrence of such vacancy i.e. well before 8 Dec, 2024.
When asked as alike bypoll for MC Mayor, if bye-election for vacant posts of President of Municipal Committee and Municipal Council is also not legally permissible, Hemant told that since Haryana Municipal Act (HMA), 1993 is applicable in case of municipal committees and municipal councils and section 15(1) of HMA, 1993 (i.e. the provision pertaining to filling of casual vacancies in such municipalites) provides that the provisions of this section shall not apply in the case of vacancy occurred in the office of the President by No-confidence motion.