Mr. Hemant Gupta, J.:- Challenge in the present writ petition is to the instructions dated 23.02.2015 (Annexure P-4), whereby ex-officio members have been permitted to vote in the elections of the President and Vice President of a Municipal Council. The relevant instructions read as under:

“Your kind attention is invited towards Rule 3(1) of the Punjab Municipal (President & Vice President) Election Regulation, 1994, with an intimation that a meeting of all the elected members of Municipal Council/Nagar Panchayat is to be convened by serving 48 hours notice to the said members at their residential address, within a period of 14 days from publishing the names of elected members in official gazette. It is further to be made clear by you in the notice that oath will be administered in the said meeting and election of President, Senior Vice President, Vice President or Vice Presidents, as is appropriate, is to be got conducted.”

2. The grievance of the petitioners is that the ex-officio members i.e. elected members of the Parliament or Legislative Assembly, who are members of the Municipal Council in terms of Section 12 of the Punjab Municipal Act, 1911 (for short ‘the Act’) have no right to vote in the elections for President or Vice President of the Municipal Council.

3. To appreciate the argument raised, apart from Article 243-R of the Constitution of India, certain provisions of the Punjab Municipal Act, 1911 and Punjab Municipal (President and Vice President) Election Rules, 1994 need to be extracted. The same are as under:

“243 R. Composition of Municipalities – (1) Save as provided in Clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial Constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards.

(2) The Legislature of a State may, by law, provide –

(a) for the representation in a Municipality of –

(i) persons having special knowledge or experience in Municipal Administration;

(ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;

(iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area;

(iv) the Chairperson of the Committees constituted under clause (5) of Article 243 S; Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;

(b) the manner of election of the Chairperson of a Municipality.”

The Punjab Municipal Act, 1911

“3. Definitions - In this Act, unless there is something repugnant in the subject or context –

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(5b) ‘ex-officio member’ means a member referred to in clause (ii) of sub section (2) of Section 12 of this Act.

(9b) ‘newly constituted committee’ means a committee the members whereof have been elected at a general election but have not taken or made an oath or affirmation of allegiance as required under section 24.

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12. Composition of Municipalities - (1) A Municipal Council or a Nagar Panchayat constituted under Section 4 shall consist of a body of members, specified in section (3), having authority over such area.

(2) The Nagar Panchayat or the Municipal Council constituted under sub-section (1) shall be a body corporate having perpetual succession and a common seal with powers, subject to the provisions of this Act, to hold, acquire and dispose of property and may by that name sue or be sued.

(3) The Nagar Panchayat or the Municipal Council constituted under sub-section (1) shall consist of the following members, namely:-

(i) such number of elected members as may be determined from time to time by the State Government in accordance with the prescribed principles; and

(ii) all members of the Legislative Assembly of the State representing constituencies