ISLAM JUNG Vs. STATE OF U P

JUDGEMENT

(1.) In this petition, counter and rejoinder-affidavits have been exchanged. Learned counsel for the parties have agreed that this petition may be disposed of finally at this stage.

(2.) The facts giving rise to this petition are that the election of Nagar Palika Parlshad, Kandhia, district Muzaffarnagar was held on 24.11.1995 in which Smt. Tahira Begum was elected as Chairman. Election of the Vice-President took place on 22.3.1997. Chairman, Smt. Tahlra Begum left India on 26.2.1998 for her Haj pilgrimage. During her absence, the term of one year of the Vice-President expired on 22.3.1998. As the Chairman of the Nagar Palika Parishad was away from the country, the District Magistrate, by order dated 23rd March. 1998 appointed Dy. District Magistrate, Budhana as the Administrator of the Nagar Palika Parishad. A copy of the order has been filed as Annexure-'3' to the writ petition. The order is in Hindi, the relevant extract of which translated in English reads as under : "Smt. Tahira Begum, Chairman Nagar Palika Parishad, Kandhia had proceeded for her pilgrimage on 27th February, 1998 and she is expected to come back by 10th of April, 1998." It is not disputed that the Chairman came back on 13.4.1998. In the order Annexure-'3', it has also been noted that the term of Sri Shaukat Jung. Vice-Presldent shall come to an end on 22.3.1998 and in such circumstances, there will be neither the Chairman nor the Vice-President available to discharge the function of the Chairman of the Nagar Palika Parishad and on the aforesaid two reasons, the Administrator was appointed. It appears that an application was moved before the Administrator on 28th March, 1398 requesting him to hold the election for electing Vice-President by invoking the provisions of Section 54A of U. P. Municipalities Act, 1916 (hereinafter referred to as the 'Act'). On this application, an order was passed by the District Magistrate on 1.4.1998 fixing 11th April, 1998 for convening the meeting of the Board to elect senior and junior Vice-Presidents for the Nagar Palika Parishad at 11 a.m. Aggrieved by the aforesaid order, the petitioners, who claimed themselves to be the members of the Nagar Palika Parishad, have filed this petition.

(3.) Sri Ravi Kiran Jain, learned Senior Advocate appearing for the petitioners, has submitted that under Section 54, sub-section (4) the outer limit of three months from the date of vacancy, has been fixed by the Legislature, for holding election of Vice-President. The District Magistrate while passing the order dated 23.3.1998 appointing the Administrator, had noted in the order that the Chairman is likely to come back on 10th April, 1998. In the circumstances, it could not be said that the Chairman was not available to hold the election of Vice-President within the period provided under sub-section (4) of Section 54. The impugned order of the District Magistrate directing to convene the meeting of Board on 11.4.1998 for electing senior Vice-president was Illegal, arbitrary and mala fide. It has further been submitted that Section 54A contains special provision for holding election of Vice-President at the Instance of the District Magistrate only in exceptional circumstances. In the present case, such circumstances were not at all present, sub-section (2) of Section 54A clearly provides that the District Magistrate may fix a date for convening the meeting of Board for the election of Vice-President, but it is subject to the provisions of sub-section (4) of Section 54. The learned counsel has submitted that from conjoint reading of sub-section (2) of Section 54A and Section 54 (4) of the Act, it is clear that the District Magistrate could not have convened the meeting of the Board for the election of Vice-President if the Chairman of the Nagar Palika Parishad was likely to be available to hold the election within the period fixed by sub-section (4) of Section 54. Learned counsel for the petitioners has placed reliance on a Full Bench decision of this Court in case of Kalyan Dutt Kaushik v. District Magistrate, Haridwar, 1991 ALJ 910.