(1.) PRESENT writ petition under Art. 226 of the Constitution of India has been preferred to declare ultravires the U.P. Act No.23 of 2005, contained in Annexure No.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.
(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.) 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.
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