Anshuman Singh, J. - (1.) BY means of this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing the order dated 10-2-1993 and the notice dated 12-3-1993 issued by the respondents nos. 2 and 3 respectively. It has been stated in the writ petition that the petitioner has been elected as Sabhasad of Nagar Maha Palika, Bareilly. A post of Up Nagar Pramukh is lying vacant in the said Nagar Maha Palika. It is urged that the election for the post of Up Nagar Pramukh is scheduled to to held on 20-3-1993.
(2.) WE have heard Sri V. K. Singh, counsel for the petitioner. Sri G. D. Srivastava, learned counsel appearing for the Nagar Maha Palika and Sri Murlidar learned counsel for the intervener Sabhasad. The controversy involved in the present writ petition Is legal one end hence we do not consider it to call for counter affidavit. Learned counsel for the parties also agree that the writ petition may be decided at the stage of admission itself without calling for counter and rejoinder affidavits. Counsel for the petitioner contended that under Rule 35 (3) of the U. P. Nagar Maha Palika (Nagar Prarnukhon Aur Up Nagar Pramukhon Ke Nirvacban Ka Sanchalan) Agya, 1959. the meeting convened for the purpose and holding of election of the Up Nagar Pramukh shall be presided over by the Nagar Pramukh and in case he is absent, the member named by a majority of the members present at the meeting. But in the instant case, according to the notice dated 12-3-1993 oi the Mukhya Nagar Adhlkari, Nagar Maha Palika. Bareilly. It has been mentioned in the aforesaid notice that according to the instructions received from the State Government, the meeting to be convened for the purpose of holding election of the Up Nagar Pramukh shall be presided over by the District Magistrate or any officer authorised by him. Learned counsel contended that the said direction is wholly illegal and in contravention of the Rule 35 (3) of the aforesaid rule and as such the District Magistrate, Bareilly may be restrained from presiding over the meeting to be convened on 10-3-1993. Sri Murlidhar, learned counsel appearing for the two intervener Sabhasad contended that under section 46 of the Nagar Maha Palika Adhiniyam, the Government can appoint Sabhadhyakahha for holding election and foe contended that since the Government has chosen to pass orders in the instant case that the said meeting would he presided over by the District Magistrate, Bareilly, the said order cannot be held to be illegal or contrary to law.
(3.) WE have given our considerable thought to the contention raised by Sri Murlidhar but are unable to accept the sane, for the reasons that the meeting convened for the purpose and holding of election of the Up Nagar Pramukh has to be presided over by the Nagar Pramukh and in his absence by any member so nominated by the members present, under the rules. The order issued if any by the State Government to the contrary is illegal and cannot override to the specific provision contained in the Rule framed under the Act. For the reasons stated above, the petition succeeds and is allowed and the direction issued by the State Government to the effect that the meeting scheduled to be held on 20-3-1993 for holding election of Up Nagat Pramukh, Bareilly contained in Annexure 5 in the Writ Petition is quashed. The authorities are directed to conduct the meeting in accordance with the Act and the Rules specially Rule 35 (3).;