A.N. Jindal, J. - (1.) THE petitioner being the Vice President of Municipal Council, Panchkula has invoked the provisions of Article 226 of the Constitution of India for quashing the order dated 17.06.2009 (Annexure P.3), order dated 26.6.2009 (Annexure P.6) and order dated 27.10.2009 (Annexure P.9) and further seeking mandamus directed the respondents to allow the petitioner to act in place of President in his absence or whenever vacancy occurs. The prime question to be determined in the petition is as under : - Whether the petitioner (Vice President) could act as a President for all intents and purposes when the election of the President is subjudice in the Courts?
(2.) THE general elections of the Municipal Council, Panchkula were held on 30.3.2008 whereby 31 members including the petitioner were duly elected. The petitioner was elected from Ward No. 12. Respondent No. 6 Ravinder Kumar Rawal was also elected as Councilor from Ward No. 14 and later on elected as President. Mr. V.K. Sood was also elected as Councilor from Ward No. 6 in the same election, however, he lost the election of President. The election of Ravinder Kumar Rawal came under challenge and the Election Tribunal, Panchkula, vide its order dated 4.5.2009, accepted the election petition and set aside his election. The appeal preferred by him was also dismissed on 8.6.2009 by the Appellate Court. Ravinder Kumar Rawal also preferred Civil Writ Petition No. 9227 of 2009 which also met the same fate vide order dated 8.1.2010. Letters Patent Appeal No. 68 of 2010 filed by Ravinder Kumar Rawal and LPA No. 1617 of 2010 filed by Deputy Commissioner, Panchkula and another were accepted by the Division Bench of this Court on 23.5.2011, and the election of respondent No. 6 -Ravinder Kumar Rawal was restored and he was held entitled to assume the office of the President for the remaining tenure. The present petition directing the respondent to work in the office of the President was filed during the pendency of the earlier litigation, therefore, the petitioner being Vice President still seeks directions to allow him to work in the absence of President or when the vacancy occurs. He has submitted that as soon as the post of President of the Municipal Council becomes vacant and the election of the President is set aside in view of the provisions of Sections 18, 21, 22 -A, 25, 28, 35, 50 of the Punjab Municipal Act, 1973 (hereinafter referred as Act, 1973). Bye -Laws 3, 20, 21, 23, 35, 36 and 44 of the Haryana Municipal Business Bye -laws, 1981 (hereinafter referred as the Bye Laws 1981) and Rule XII.4, XIII.4 of Municipal Accounts Code, 1930 (hereinafter referred as Code 1930). It has been further submitted that there are statutory duties and functions to be performed by the Vice President in the absence of the President including chairing of the meetings, signing the cheques and files relating to the tenders. He has right to hold meetings, hear the problems of the people, perform the community service on behalf of the council, do development work and hear the grievances of the citizens but due to the absence of the President, all the aforesaid works have been put on hold for which respondents No. 2, 3 and 4 are responsible. Though the Vice Presidents in 2 -3 Municipal Councils in Haryana are performing the functions and duties and also enjoying the privileges of the President under Haryana Business Bye -laws No. 44 and in this respect there is a violation of the instructions issued vide letter dated 1.1.2009 (Annexure P -11).
(3.) IN the written statement filed by the respondents No. 1, 2 and -3, some preliminary objections have been raised inter alia that since no order was challenged by the petitioner in the writ petition, therefore, the same was not maintainable. It has been further averred that in the light of the judgment dated 23.09.2009 delivered by Division Bench of this court in Civil Writ Petition No. 11377 of 2009 titled as Ravinder Kumar Rawal v. State of Haryana and others, (Annexure P.8) filing of the present writ petition is sheer mis -use of process of law and no cause of action survives. No right of the petitioner, much less any statutory right has been infringed by any action of the respondents No. 1 to 3. None of the orders passed by the respondents No. 1 to 3 has been challenged. On merits, the respondents No. 1 to 3 controverted all the allegations and further averred that since the matter with regard to the election is already subjudice (now decided) before the Division Bench therefore, this writ petition is misconceived. It has also been averred that the order dated 3.7.2009 passed by the respondent No. 1 authorising the petitioner to act as President in the vacancy of the President has been set aside by the Division Bench of this Court vide order dated 23.9.2009, therefore, the respondents were handicapped to issue any such orders. It was also alleged that the respondents No. 1 to 3 had been performing their duties to the best of their ability, sincerity and with integrity without causing any kind of prejudice to any body including the petitioner. However, they are duty bound to follow the directions/orders issued by the Court. They never stopped the petitioner to function as Vice President. So far as Annexure P -11 is concerned, no such guidelines were sought for or issued by the State. In fact the petitioner has incorrectly shown this letter having been issued from the office of the respondent No. 1 to the respondent No. 4 which is factually incorrect. The allegation of treating the Municipal Council, Panchkula as personal property and passing orders in arbitrary manner is specifically denied. Similar reply was furnished by the respondents No. 4 and 5.;