P. N. Bakshi, J. - (1.) THE President of the Municipal Board, Hapur had been suspended. THE term of the Vice President had expired on 16-10-1974. Sri R. C. Nagar, Sub-divisional Magistrate, Hapur had been appointed by the District Magistrate, Hapur under Section 54-A of the Municipalities Act to exercise the powers and functions of the President. On 28-7-1975, a notice was issued by the District Magistrate for holding the election of the office of the Vice President under Section 54-A (2) of the Municipalities Act on U-8-1975 at 11 a. m. Sri S. S. Kui-shrestha, Munsif Haveli was to preside over this meeting. THE total strength of the members of the Municipal Board, Hapur was 21. On the date of the meeting ten members were present. From a perusal of the minutes of the meeting held on 11-8-1975 (Annexure 2) it appears that the name of Sri Ved Prakash respondent No. 2 alone was proposed and seconded at this meeting. All the ten members voted for him. Sri Ved Prakash was thus declared elected Vice President of the Municipal Board, Hapur by Sri Kulshrestha. Aggrieved thereby the present writ petition has been filed.
(2.) LEARNED counsel for the petitioner has urged that the election of the vice president held on 11-8-1975 was illegal in the absence of the requisite quorum as required under Section 88 (2) of the Municipalities Act. Since the total number of members of the Board was 21 and since only ten members were present which was less than one half of the members of the Board; hence the election was invalid. On behalf of the respondent it was urged that Section 88(2) of the Municipalities Act is not applicable to an election of the Vice President which is held under the provisions of Section 54(A) of the said Act. Section 54 of the U.P. Municipalities Act provides that every Board shall have a Vice President-senior or junior-elected by the Board from amongst its members by a spcial resolution. The term of the Vice President shall be one year from the date of the election. Section 54-A deals with the election of Vice President in certain contingencies. Under Section 54-A(1) when the President fails or refuses to function or is otherwise unable to function or a casual vacancy occurs in the office of the President, and no Vice President had been elected in accordance with this Act or there is no Vice President otherwise able to function, the powers of the President or Vice President can be exercised and performed by the District Magistrate, or his nominee not below the rank of a Deputy Collector until the President or Vice President is able to function. Under Section 54-A(2) the District Magistrate or his nominee has been authorised to appoint a date and time and to issue a seven days clear notice of the meeting to every member of the Board for holding the meeting for the election of the Vice President. Under Section 54-A(3) the District Magistrate has to arrange for a stipendary civil judicial officer to preside over the meeting convened for this purpose. Under sub-Section (6), the Board shall proceed to elect the Vice President at such meeting. Under sub-Section (8), the Judicial Officer has been authorised in case of equality to decide by lot as to which of the candidate should be declared elected.
(3.) COUNSEL for the respondent has submitted that the procedure for holding the election of the Vice President which has been prescribed under Section 54-A does not require the passing of the resolution by the Board which is a requisite for the election of the Vice President under Section 54 of the Act. In support of this submission, he has placed reliance upon a Division Bench decision of this Court in Lakshmi Narain Misra v. Municipal Board, 1962 AWR 100. in that case the Division Bench while dealing with Section 54-A of the Municipalities Act observed as follows :- "We do not think that the Vice President is elected by a resolution of the Municipal Board under Section 54-A. The section provides a special procedure for electing the Vice President otherwise than by a resolution." Counsel for the petitioner has attempted to distinguish this Division Bench case. He urged that Section 54-A of the Municipalities Act has been amended by U. P. Act XXVII of 1964 and as such the aforesaid decision is inapplicable. Section 54-A (1) as it stood prior to the amendment read as follows :- "Where a person on being elected President fails or refuses to function or is otherwise not able to function, and a Vice President has not been elected in accordance with this Act, the powers and functions of the President except presiding at a meeting of the Board shall, until a Vice President has been elected, be exercised and performed, if the District Magistrate so directs and subject to such conditions as he may specify, by the Executive Officer and in the case of a Board where there is no Executive Officer, by the Secretary, and the following procedure shall be followed for the election of a Vice President." ;