"No legal bar on Mayors and Chairpersons of District Council contesting in State Assembly Elections"-HC Advocate  

Officials of urban bodies and Panchayati Raj institutions cannot be called offices of profit under the government - Advocate

Babushahi Bureau

Chandigarh, September 7, 2024: Hemant Kumar, Advocate in Punjab and Haryana High Court explained that there is no legal bar on the Mayors of Ambala and Sonipat Municipal Corporations and the Chairperson of the District Council Rohtak contesting the MLA elections.

Hemant Kumar made this comment  after BJP fielded the current Mayor of Ambala Municipal Corporation Shakti Rani Sharma from Kalka and the current Mayor of Sonipat Municipal Corporation Nikhil Madaan has been fielded from Sonipat. He has been made the party candidate from the (Urban) Assembly seat.

Their name was announced in the first list of 67 candidates released by the ruling BJP for the upcoming Haryana Assembly elections.

Similarly, Rohtak Zila Parishad chairperson Manju Hooda has been fielded as the BJP candidate against former chief minister Bhupinder Hooda from Garhi-Sampla Kiloi in Rohtak district.

"It is known that Shakti Rani Sharma was directly elected to the post of Mayor of Ambala Municipal Corporation in December 2020 by contesting elections on the ticket of Haryana Jan Chetna Party - HJP (V) and election symbol (gas cylinder) and a week ago 1 She joined BJP in September. However, the interesting thing is that her husband and HJP (V) supremo Vinod Sharma has not merged this party with BJP. So, in a way, it can be said that Mayor Shakti Rani He is the only one who switched sides from HJP(V) to BJP. Similarly, Nikhil Madan, who was directly elected as the Mayor of Sonipat Municipal Corporation in December 2020 after contesting on a Congress ticket and symbol, had switched sides and joined the BJP in July, two months ago," he added.

'In the midst of all this, Punjab and Haryana High Court advocate and constitutional expert Hemant Kumar (9416887788) said that the anti-defection law in the 10th Schedule of the Indian Constitution applies only to MPs and MLAs, not to urban local Not on the elected members (councillors) and their office bearers of the municipal bodies like Municipal Corporations/Councils/Panchayatis. Hence not only the members of the concerned Municipal Body but also the Municipal Corporation Mayor/Senior Deputy Mayor/Deputy Mayor etc. should be elected from their original party i.e. on whose ticket they are contesting. If he has been elected, he can join any other political party/group and hence he is free to change parties without any hindrance.

The tenure of both Shakti Rani Sharma and Nikhil Madan as Ambala and Sonipat Municipal Corporation Mayors respectively is till January 2026, i.e. about one and a quarter years are remaining.

However, Hemant told that apart from other qualifications to contest election for the post of member of State Legislative Assembly i.e. MLA, one qualification is that the person should not be holding any office of profit under the Central Government or State Government as It is mentioned in Article 191 of the Constitution of the country that through a law enacted by the State Assembly, many government posts can be exempted from the disqualification of being an office of profit and the officials holding those posts can be declared eligible to contest the elections to the State Assembly. Is.

Hemant said that in the Haryana State Legislature (Removal of Qualification) Act, 1974, made by the Haryana Legislative Assembly in the year 1974, among the posts exempted from the category of office of profit, the post of Municipal Corporation Mayor and Zila Parishad Chairperson is clearly mentioned. But technically both these posts cannot be called posts under the State Government because the officials occupying these posts are not nominated or nominated by the State Government but are elected by the voters of their respective constituencies. Thus, neither Ambala Mayor Shakti Rani Sharma, nor Sonipat Mayor Nikhil Madan, nor Rohtak Zila Parishad Chairperson Manju Hooda need to resign from their posts before filing nominations for the upcoming Haryana Assembly elections.

Meanwhile, Hemant also said that under Section 8A of the Haryana Municipal Corporation Act, 1994, the mayor or member of any municipal corporation of the state (who are also called councillors in common language, although this word is not there in the Municipal Corporation Act) can be in power at the same time. But a person cannot remain a Mayor, MLA or MP. If a person gets elected to the Legislative Assembly or Parliament while being a Mayor or MP of a Municipal Corporation, then he ceases to be a Mayor of the Municipal Corporation from the date of being declared elected as an MLA or MP. There will no longer be a mayor or member of the party. In other words, if Shakti Rani Sharma and Nikhil Madan are elected MLAs, there will be no need for them to formally resign from the post of mayor.

"Since in Haryana, the Municipal Corporation Mayor is directly elected by the voters of the respective corporation area since the year 2018, therefore, if Shakti Rani Sharma and Nikhil Madan are elected as MLAs, then the remaining term of the vacant Mayor post of both of them i.e. January By 2026, the Haryana State Election Commission may have to hold by-elections for the post of mayor of both municipal corporations because at present there is no system of electing a full-time mayor from among the municipal corporation members. However, until a regular mayor is elected, Till then, the Senior Deputy Mayor of both the Municipal Corporations or in his absence the Deputy Mayor can call a meeting of the Municipal Corporation House and preside over it," he added.