Hon’ble Devi Prasad Singh, J.—

INDEX

Sl. No. Particulars Page No.

1 Facts, Constitutional and Statutory Provisions 1-15

2 (I) Voter List 16-25

3 (II) Duration 26-34

4 (III) Whether the term of municipality may be 35-37

extended beyond five years in absence of election

5 (IV) Object and reasons 38-42

6 (V) Legislative Field 43-53

7 (VI) Legislative competence 54-65

8 (VII) The legislature cannot delegate their 66-71

essential function

9 (VIII) Duty of the election Commission and of 72-96

the State Government

10 (IX) Vacuum 97-99

11 (X) Order 100-101

Present writ petition under Article 226 of the Constitution of India has been preferred to declare ultra vires the U.P. Act No. 23 of 2005, contained in Annexure 4 to writ petition No. 11226(M/B) of 2011 and also direct the respondents not to interfere with the functioning and discharging of duty by the petitioners till the election to the municipality in question is held in accordance with law.

By the impugned Act No. 38 of 2006, under Section 1A, the first meeting has been defined as the meeting held for taking the oath of office.

2. The petitioners are the Chairman and Member of Municipal Council constituted under U.P. Municipalities Act, 1916(in short, 1916 Act). The election was held in the year 2006 and thereafter, taking the oath of office in pursuance to the statutory provisions, they have resumed duty and started to discharge their constitutional obligations. In connected writ petitions, some are Members and Chairman of the Municipal Corporations constituted under U.P. Municipal Corporation Act, 1959 (in short, 1959 Act). The provisions contained in both the Acts are pari materia and the writ petition No. 11226(M/B) of 2011 is taken as leading writ petition.

3. The election was held in the year 2006 and the first meeting of municipality was convened on 16.11.2006 and entitled to operate upto 16.11.2011. Under Section 10-A of 1916 Act, the term of municipality has been provided for the period of five years from the date appointed for its first meeting and no longer. The conduct of business under both the Acts (supra) is regulated by the provisions contained in Chapter III of the respective Acts, according to which the meeting of the municipal board or municipal corporation is called on for transaction of its business after notifying/circulating the Agenda.

4. However, by the impugned amendment, the State Legislator has amended Section 10-A of 1916 Act and provided therein that where the election is not held for any unavoidable circumstances of the municipality, then all powers, function and duties of municipality shall be exercised by the District Magistrate or by the gazetted officer not below the rank of Deputy Collector. Such officer shall be called administrator and the administrator shall be deemed in law to be municipality.

Similarly, Section 8 of the 1959 Act has been amended providing therein to appoint administrator for municipal corporations. The entire amendment as contained in Amending Act of 2005 under Act No. 23 of 2005 is reproduced as under :

STATEMENT OF OBJECTS AND REASONS

The terms of Urban Local Bodies are going to expire in the near future but the constitution of elected Urban Local Bodies and the election of their office bearers could not be possible within the stipulated period as fresh delimitation of wards, preparation of electoral rolls, and reservation of wards etc on the basis of census of 2001 would take time.

In the above circumstances it has been decided to amend the Uttar Pradesh Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporation Act, 1959, to provide that, where due to unavoidable circumstances or in the public interest it is not practicable to hold an election to constitute an Urban Local Body before the expiry of its term then until the due constitution of such urban local body all the powers, functions and duties of such urban local body shall be exercised and performed by the District Magis