Ex officio and nominated members of a Board have the right to vote in the election of the President of the Municipality, as they are considered members of the Board under Section 9 of the Municipalities Act.

S. D. Agarwala, J.

1. Heard learned counsel for the petitioner and Sri A. P. Singh, learned Addl. Chief Standing Counsel. Learned counsel for the petitioner has contended that while conducting the election for the Presidentship of the Municipality, only members who have been elected and who constitute a class of 'members' under section 9 (b) of the Municipalities Act have a right to vote and the ex officio members and nominated members have no right to vote in the election of Presidentship of the Municipality.

2. In order to test the above submission made by the learned counsel for the petitioner it is relevant to quote Section 9 and Section 43 of the Municipalities Act. Section 9 of the said Act speaks about the normal composition of the Board and Section 43 speaks about the election of the President. Section 9 and Section 43 of the said Act are quoted below :

"9. Normal Composition of the Board : Except as otherwise provided by section 10, a board shall consist of :- (a) The President; (b) The elected members who shall not be less than 10 and more than 40, as the State Government may by notification in the official Gazette specify ; (c) the ex officio members comprising all members of the House of People and the State Legislative Assembly whose constituencies include the whole or part of the Municipality. (d) Ex officio members comprising all members of the council of States and the State Legislative Council who have their residence within the limits of the Municipality. Explanation:-For the purposes of this clause, the place of residence of a member of the Council of States or the State Legislative Council shall be deemed to be the place of his residence mentioned in the notification of his election or nomination, as the case may be. Provided that if none of the members elected under clause (b) is a woman the State Government may by a like notification nominate one woman as a member of the Board and thereupon, the normal composition of the Board shall stand varied to that extent. Provided further that if any member of the State Legislative Council representing the local Authorities Constituency does not have his residence within the limit of any Municipality, he will be deemed to be ex-officio member of the board of such one of the municipalities situated within his constituency as he may choose. Provided also that if none of the members elected under clause (b) belongs to safai mazdoor class, the State Government may, by notification, nominate a person belonging to the said class a member of the Board, and thereupon the normal composition of the Board shall stand varied to the extent. Explanation :-A person shall be deemed to belong to the Safai Mazdoor class if he belongs to such a class of scavengers by occupation or to such of the Scheduled Castes traditionally following such occupation as may be notified by the State Government." "43. Election of President : (1) As soon as may be, after the election of members of the Board a city other than a city declared as such under section 3 is completed at a general election, the members shall elect a President of such Board in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot. Explanation :-For the purposes of this sub-section, the election of the members of the Board shall, notwithstanding any seat remaining unfilled, be deemed to be completed if at least four fifth of total number of members fixed under section 9 have been elected. (2) The President of a Board other than a Board referred to in subsection (1) shall be elected by the electors in the municipality : Provided that if in a general election a person is elected both as member and President of the Board, to which this sub-section applies, or being a member of such Board is elected President thereof in any bye-election, he shall, except as provided in Section 40, cease to be a member from the date of his el