DEVI PRASAD SINGH, J. - (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. 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. 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.
(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. 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 Magistrate who shall be called the Administrator of that urban local body to avoid any crisis. "2. Amendment of Section 10-A of U.P. Act No.2 of 1916.- In Section 10-A of the Uttar Pradesh Municipalities Act, 1916, after sub-section (3) the following sub-section shall be inserted, namely:- "(4) Notwithstanding anything to the contrary contained in any other provision of this Act, where, due to unavoidable circumstances or in the public interest, it is not practicable to hold an election to constitute a Municipality before the expiry of its term, then until the due constitution of such Municipality, all the powers, functions and duties of the Municipality shall be exercised and performed by the District Magistrate or by a Gazetted Officer not below the rank of a Deputy Collector appointed by the District Magistrate in this behalf, and such District Magistrate or Officer shall be called the Administrator, and such Administrator shall be deemed in law to be the Municipality, the President or the Committee as the occasion may require." CHAPTER III AMENDMENT OF THE UTTAR PRADESH MUNICIPAL CORPORATION ACT, 1959. 3.Amendment of Section 8 of U.P. Act No.2 of 1959. In Section 8 of the Uttar Pradesh Municipal Corporation Act, 1959, after sub-section (3) the following sub-section shall be inserted, namely:- "(4) Notwithstanding anything to the contrary contained in any other provision of this Act, where due to unavoidable circumstances or in the public interest, it is not practicable to hold an election to constitue a Municipal Corporation before the expiration of its duration, then until the due constitution of such Municipal Corporation, all powers, functions and duties of the Corporation, its Mayor, Deputy Mayor, Wards Committee, Executive Committee, Development Committee and other Committees established under clause (e) of Section 5 shall as from the specified date, be vested in and be exercised, performed and discharged by the District Magistrate who shall be called the Administrator and such Administrator shall be deemed in law to be the Corporation, the Mayor, the Deputy Mayor, Ward Committee, Executive Committee, Development Committee or other Committee as the occasion may require." The Uttar Urban Local Self Government Laws (Amendment) Bill, 2005 is introduced accordingly. By order, RAM HARI VIJAI TRIPATHI Pramukh Sachiv, The impugned Amending Act No.38 of 2006 is reproduced as under : STATEMENT OF OBJECTS AND REASONS With a view to making provisions of the Uttar Pradesh Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporation Act, 1959 more effective, it has been decided to amend the said Acts mainly to provide for, - (a) clarifying that the meeting of a Municipality or of a Corporation convened after its constitution or re-constitution for administration of oath or affirmation shall be the first meeting of that Municipality or Corporation as the case may be; (b) empowering the Executive Officer of a Municipality or the Municipal Commissioner of a Corporation to direct, by general or special order, any regular, adhoc or contractual employee of the Municipality or the Corporation, as the case may be, who goes or remains on or otherwise takes part in any prohibited strike to resume duty and to make new appointment to the posts held by the employees who have failed to comply with the said order; (C) authorising the Corporation to impose tax on helicopters or any other type of planes when they land on or take off from the heli-pads, airports, airstrips or places made for this purpose situated within the Corporation instead of on animals used for riding, driving, draught or burden kept within the city; (d) authorising the Corporation to impose tax on certain items in respect of which the Corporation is heitherto authorised to impose tax in addition to the items on which the Corporation is fully authorised to impose tax; (e) exempting from levy of tax the fields, farms and gardens of Government, aided institutes of research and development, playgrounds of Government, aided or unaided recognised educational institutions and sports stadium. ................................................ "............................................ THE UTTAR PRADESH URBAN LOCAL SELF GOVERNMENT LAWS (SECOND AMENDMENT) ACT, 2006 (U.P. ACT NO.38 OF 2006) [As passed by the U.P. Legislature] AN ACT further to amend Uttar Pradesh Municipalities Act, 1916 and the U.P. Municipal Corporation Act, 1959. IT IS HEREBY enacted in the Fifty-seventh Year of the Republic of India as follows :- CHAPTER-I Preliminary 1. This Act may be called the Uttar Pradesh Urban Local Self Government Laws (Second Amendment) Act, 2006. CHAPTER-II Preliminary Amendment of the Uttar Pradesh Municipalities Act, 1916. 2. In section 43-D of the Uttar Pradesh Municipalities Act, 1916 hereinunder in this chapter referred to as the principal Act, for sub-section (4), the following sub-section shall be substituted, namely :- "(4) Within seven days of the constitution or reconstitution of the Municipality, the District Magistrate shall convene a meeting of the Municipality for the Administration of oath or affirmation in the manner prescribed in this section and such meeting shall be presided over by the District Magistrate or in his absence by a Deputy Collector nominated by him in this behalf. The Meeting, so convened shall be treated as the First Meeting of the Municipality." ------------------------------------------------ CHAPTER - III Amendment of the Uttar Pradesh Municipal Corporation Act, 1959 4. In section 85 of the Uttar Pradesh Municipal Corporation Act, 1959, hereinafter in this chapter referred to as the principal Act, for sub-section (1-A) the following sub-section shall be substituted, namely:- "(1-A) Within seven days of the constitution under section 9 or reconstitution under section 538 of the Corporation the Municipal Commissioner shall convene a meeting of the Municipal Corporation. The commissioner of the Division or in his absence the District Magistrate shall administer the oath or affirmation to the Mayor and thereafter the Mayor shall administer the oath or affirmation to corporators who have been declared elected. Such meeting shall be presided over by the Commissioner of the Division or in his absence the District Magistrate. The meeting so convened shall be treated as the First Meeting of the Municipal Corporation." .................................................... ;