B. M. Lal, J. - (1.) BY this petition, Petitioners have prayed for issuing a writ in the nature of Certiorari quashing notification dated 16-11-92 (Annexure 1), issued by District Magistrate Budaun for holding bye-election for the post of President. Municipal Board Budaun and also for quashing the election held on 23-5-93 pursuant to aforesaid notification.
(2.) ACCORDING t6 petitioner, impugned election was conducted in utter violation of the order passed by this Court on 21-5-93 as it was conducted on the basis of Electoral Roll modified only up in 1988 whereas by order dated 21-5-93 it was directed by this Court that the election for the post of president of the Municipal Board Budaun shall not be held on the basis of the electoral roll prepared in 1988. Further according to petitioner District Magistrate Budaun conducted the whole election on the basis of para 14 sub-para (I) read with para 75 of Order 1964 applicable for the election of members as such holding of the election was illegal from the very inception itself. Denying the averments made in the writ petition, respondents have filed counter affidavit and raised preliminary objection that instant writ petition. itself is not maintainable under Article 226 of the Constitution of India on the face of specific provisions under Section 43-B of 'The United Provinces Municipalities Act 1916 (for short the Act) which gives right to challenge the election by means of election petition. The election petition can be presented by any member entitled to vote at the election. In view of the preliminary objection raised by the respondents which questions jurisdiction of this Court to entertain instant writ petition, it is necessary to decide the preliminary objection first, without entering into merits of the case and without touching actual contoversy involved, in it.
(3.) HAVING heard learned counsel for the parties on the preliminary objection it appears better to have the provisions of the Act relevant for the purposes of deciding the preliminary objection. Impugned notification pertains to the election of the President of Municipal Board Badaun. The term "Municipality' is a defined term in the Act under the definitions clause and means any local area which is a municipality by reason of a notification issued under Section 3 or, subject to the provisions of the said section, any local area which was a municipality at the time immediately preceding the commencement of this Act. The term "City" is also defined and means a municipality having a population of 1,00,000 or more inhabitants and any municipality which is a city by virtue of a notification under Section 3 of the Act. Thus the population of Budaun being less than 1,00,000 inhabitants, instead of City Board, Municipal Board is constituted there for which impugned notification was issued and the election was conducted.;