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2004 Supreme(All) 1942
2005 (1) AWC 696
(ALLAHABAD HIGH COURT)
M. Katju, A.C.J. and Sunil Ambwani, J.
C.M.W.P. No. 35404 of 2004
Decided on October 27, 2004
Khaliquz-Zaman
Versus
State of U. P. and others
Counsel for the Petitioner: A. A. Khan.
Counsel for the Respondents: P. K. Misra, S. M. A. Kazmi, C.S.C., C. B. Yadav, C.S.C., S.C.
Headnote:
Election - U.P. Municipalities Act - Section 54, Article 243R - 243R(1), 243R(2)(a)(iv), 9, 54 - The court discussed the provisions of the U.P. Municipalities Act, particularly Section 54, in light of Article 243R of the Constitution. The interpretation of the word 'meeting' in the proviso to Article 243R(2) was crucial in determining the validity of the election process for the Vice President. The court emphasized the need to interpret the statutory provisions in a manner that upholds their constitutional validity.
Fact of the Case:
The writ petition was filed to quash the election of Vice President of Nagar Palika Parishad, Amroha, J. P. Nagar and to declare Section 54 of the U. P. Municipalities Act, 1916, ultra vires Article 243R of the Constitution. The petitioner alleged irregularities in the election process, including the participation of nominated members.
Finding of the Court:
The court held that the word 'meeting' in the proviso to Article 243R(2) should not be interpreted to include an election, as it would render Section 54(1) unconstitutional. Therefore, nominated members were deemed eligible to vote in the election for Vice President.
Issues: The key issue was the interpretation of Section 54 of the U.P. Municipalities Act in relation to Article 243R of the Constitution, specifically the eligibility of nominated members to vote in the election for Vice President.
Ratio Decidendi: The court emphasized the need to interpret statutory provisions in a manner that upholds their constitutional validity. It relied on established legal principles to narrow down the scope of the statutory provision and sustain its validity.
Final Decision: The petition was dismissed, affirming the validity of the election of the Vice President and upholding the constitutionality of Section 54(1) of the U.P. Municipalities Act.
M. Katju, A.C.J.—This writ petition has been filed for a writ of certiorari to quash the election of Vice President of Nagar Palika Parishad, Amroha, J. P. Nagar held on 22.8.2004 in pursuance of the notification dated 26.7.2004, Annexure-1 to the writ petition. It has also been prayed that Section 54 of the U. P. Municipalities Act, 1916, be declared ultra vires Article 243R of the Constitution which was introduced by the 74th Constitutional Amendment.
2. We have heard the learned counsel for the parties.
3. A counter-affidavit has been filed in this case on behalf of the State Government. An affidavit of service has also been filed by the petitioner stating that the petitioner went to serve respondent No. 5 on 3.9.2004 in presence of witnesses but the respondent No. 5 refused to accept the notice. The petitioner then sent notice to respondent No. 5 through registered post and the notice was also pasted on the door of the respondent No. 5 and was published in the Hindi newspapers ‘Swatantra Bharat’ and ‘Amar Ujala’ vide Annexure-3. In these circumstances we are deeming service of notice on respondent No. 5 to be sufficient.
4. It is alleged in paragraph 3 of the writ petition that the petitioner is duly elected member of Nagar Palika Parishad, Amroha, J. P. Nagar since 2000 and he has been functioning as such. A notification dated 26.7.2004 was issued by the State Election Commission, respondent No. 2, in exercise of powers under Article 243ZA read with Section 13B of the U. P. Municipalities Act directing all local bodies and Nagar Panchayats to hold election of the Vice President as per schedule mentioned in the notification. True copy of the notification dated 26.7.2004 is Annexure-1 to the writ petition.
5. In pursuance of the aforesaid notification issued by the respondent No. 2, the respondent No. 3, District Magistrate, J. P. Nagar issued notice dated 31.7.2004 for holding election to the post of Vice President of Nagar Palika Parishad, Amroha, vide Annexure-2 to the petition. Thereupon the election to the post of Vice President, Nagar Palika Parishad, Amroha, was held on 22.8.2004 and respondent No. 5 was elected as Vice President.
6. It is alleged in paragraph 7 of the writ petition that in the aforesaid election one nominated member, namely, Dr. A. Saifi cast his vote although it is alleged that his membership was cancelled by the Government on 17.8.2004, vide Annexure-3 to the writ petition.
7. It is alleged in paragraph 8 of the writ petition that the Executive Officer, Nagar Palika Parishad, Amroha, displayed the voters list dated 3.8.2004 of the members who were entitled to vote for the post of Vice President. It is alleged that the nominated members have also cast their votes in the election for Vice President and this has vitiated the entire election. True copy of the electoral list dated 3.8.2004 is Annexure-4 to the writ petition.
8. By means of the Constitution 74th Amendment, 1992, which came into force from 1.6.1993 Para IX-A was inserted in the Constitution in respect of the Municipalities.
9. Article 243R of the Constitution reads as follows :
243R. Composition of Municipalites.—(1) Save as provided in clause (2), all the seats in a Municipality shall be filled by person 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 Municipality of—
(i) person 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 Chairpersons of the Com
