TaxTMI 
TaxTMI 
2020 (12) TMI 1386
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....and in pursuance thereto Sub Divisional Officer (Civil), Nadaun vide public notice dated 14.8.2020 (Annexure P-3) had notified the date i.e. 17.8.2020 for the said purpose and had undertaken the process on 17.8.2020 and declared roster of reservation of seats of members of Municipalities situated in his jurisdiction including Nagar Panchayat, Nadaun. 3. Deputy Commissioner vide order dated 27.8.2020 (Annexure P-2) had cancelled the 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 and had decided 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 o....
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.... judgment of the Supreme Court in case Dravida Munnetra Kazhagam (DMK) Vs. Secretary, Governor's Secretariat and others, (2020) 6 SCC 548, wherein after relying its earlier pronouncement in case titled Election Commission of India Vs. Ashok Kumar (2000) 8 SCC 216, it has been 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 such as on 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,....
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....of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles." ... ... ... ... ... ... 13. Learned Additional Advocate General referring judgment of Supreme Court in case titled as Indian Railway Construction Co. Ltd. Vs. Ajay Kumar, (2003) 4 SCC 579, has contended 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 particula....
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.... 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. Contrary to plea of the petitioner, this fact has been reflected in impugned order dated 27.8.2020 (Annexure P-2) by Deputy Commissioner. 18. Plea of the petitioner that Section 18 of Himachal Pradesh General Clauses Act saves the action of SDO (Civil) undertaken by him on behalf of Deputy Commissioner, is also misconceived. Section 18 of Himachal Pradesh General Clauses Act provides that power 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 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 (Municip....