Jai Kumar Thakur versus State of H.P. CWP No.10960 of 2025 17.07.2025 Present: Mr. Rupinder S. Minhas, Advocate, for the petitioners. Mr. Surender Sharma, Advocate, for respondent No.1. Mr. Anup Rattan, Advocate General with Mr. I.N.Mehta, Sr. Additional Advocate General, Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Kaprate, Additional Advocate Generals and Mr. Raj Negi, Deputy Advocate General, for respondents No. 2 and 3. Mr. Abhinav Purohit, Advocate, for the respondent No.4. CMP No.16677/2025 Heard. On 09.07.2025, this Court passed the following orders:- “The Divisional Commissioner, Mandi, has refused to entertain the appeal filed by the petitioner on the ground that the same cannot be entertained as it is time barred as per notification issued by the State Election Commission. The signature appended with the order is dated 26.6.2025, whereas the order passed by the Deputy Commissioner, Mandi is dated 16.6.2025. The mode and manner in which the limitation has been calculated we are not at all satisfied, but prima facie we are of the considered view that the appeal has been filed within 10 days as stipulated in Rule 8 of the Himachal Pradesh Municipal Election Rules, 2015. 2. It is more than settled that an executive order that too in the nature of notification issued by the Election Commission cannot supersede and override the statutory Rules. 3. According to the “pure theory of law” of the eminent jurist Kelsen, in every legal system there is a hierarchy of laws, and the general principle is that if there is a conflict between a norm in a higher layer of the hierarchy and a norm in a lower level of the hierarchy, then the norm in the higher layer prevails, and the norm in the lower layer becomes ultra vires. 4. In our country this hierarchy is as follows: (1) The Constitution of India. (2) Statutory law, which may be either law made by the Parliament or law made by the State Legislature. (3) Delegated legislation which may be in the form of rules, regulations etc. made under the Act. (4) Administrative instructions which may be in the form of GOs, Circulars etc. 5. Therefore, in the event of there being a conflict between the Act, Rules and regulations, the Act will prevail and if there is a conflict between the Act, Rules and the regulations on the one hand and the circular or prospectus on the other hand, the Act will prevail and the later becomes ultra vires. (Refer: Union of India and others vs. Arun Kumar Roy, AIR 1986 SC 737, Shish Ram and others vs. State of H.P. and others, (1996) 10 SCC 166 and Union of India vs. Madras Telephones Scheduled Castes and Scheduled Tribes Social Welfare Association (1997) 10 SCC 226). 6. Accordingly, issue notice. 7. Mr. Pavnish Shukla, Advocate, Mr. Raj Negi, Deputy Advocate General and Mr. Abhinav Purohit, Advocate, appear and waive service of notice on behalf of the respective respondents. They pray for and are granted three weeks’ time to file reply. 8. List on 30.7.2025. In the meanwhile, operation and execution of the impugned notification, dated 24.5.2025 (Annexure P-1), order dated 16.6.2025 (Annexure P-3) and order dated 26.6.2025 (Annexure P-4) are ordered to be stayed.” 2. It would be noticed that this Court proceeded on the premise that in terms of Rule 8 of the Himachal Pradesh Municipal Election Rules,2015, the statutory period prescribed for filing appeal was 10 days, however, it appears that thereafter, aforesaid Rule was amended vide notification dated 12.10.2020 reducing the period of limitation of an appeal from 10 days and substituting the same for 07 days. Since the order dated 09.07.2025 proceeded on the premise that limitation period was 10 days, obviously, the same cannot withstand judicial scrutiny and accordingly, order dated 09.07.2025, whereby the operation and execution of the impugned notification dated 24.05.2025 (Annexure P-1), order dated 16.06.2025 (Annexure P-3) and order dated 26.06.2025 (Annexure P-4) have been ordered to be stayed, is ordered to be vacated. Application stands disposed of. CWP No.10960 of 2025 Learned counsel for the petitioner at this stage prays for and is granted liberty to amend the writ petition so as to assail the amendment carried out in the Act. Needful be done within two weeks. List on 31.07.2025. (Tarlok Singh Chauhan) Judge (Sushil Kukreja) July 17, 2025 Judge (yogesh/pankaj)