R. Rafat Alam and (Mrs.) Poonam Srivastava, JJ. - (1.) -In the instant petition sole petitioner has challenged the constitutional validity of Section 27A of the U. P. Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 U. P. Act No. 53 of 1961 (hereinafter referred to as '1961 Act'), which imposes bar on Legislators and holders of certain offices becoming and continuing as Pramukh, Up-Pramukh, Adhyaksha and Upadhyaksha.
(2.) HEARD Shri S. P. Gupta, senior advocate, assisted by Mr. Yashwant Verma, learned counsel for the petitioner, Shri Chandra Shekhar Singh, learned standing counsel appearing for the State. Shri P. K. Mishra, learned counsel appearing for the State Election Commission, Shri B. D. Madhyan, learned senior advocate assisted by Shri Satish Madhyan, learned senior counsel appearing for Shri Brijendra Singh son of Ram Bharosey Lal, newly impleaded respondent, who has filed impleadment application as he is elected member from Ward No. 22 of Zila Panchayat, Firozabad. He has staked his claim to the office of Adhyaksh, which has become vacant on account of previous Adhyaksh namely, Hari Om Yadav, petitioner having been elected as Member of Legislative Assembly (hereinafter referred to as 'M.LA.'). Counter and rejoinder-affidavits have been exchanged. As the parties have agreed that the writ petition may be decided finally, we have proceeded to hear counsel for the respective parties to decide the case finally. The facts, giving rise to the instant dispute, are that on 19.5.2000 the petitioner was elected as a member of Zila Panchayat, Firozabad. Thereafter on 6th August, 2000 he was elected as Adhyaksh, Zila Panchayat, Firozabad. The petitioner while still in office of Adhyaksh contested the election for the membership of 14th Legislative Assembly of U. P. from the constituency of Shikohabad. The elections were held in February, 2002 and he was elected on 24.2.2002. The result was published in the Gazette of Uttar Pradesh. As a result of election of the petitioner as a member of 14th Legislative Assembly of Uttar Pradesh, by operation of law under Section 27A (1) (b) of 1961 Act a casual vacancy occurred in the office of Pramukh of Zila Panchayat, Firozabad. This has given rise to the present writ petition assailing the constitutional validity of Section 27A by the petitioner on the ground that it is unconstitutional, being in conflict with the scheme of Part IX of the Constitution of India. The petitioner besides seeking declaration of Section 27A of 1961 Act as unconstitutional and inoperative after enforcement of Part IX of the Constitution of India has further prayed for mandamus restraining the respondents from enforcing the provision of Section 27A of 1961 Act in respect of the petitioner.
(3.) A Division Bench of this Court had passed an interim order on 30th April, 2000, directing that the casual vacancy in the office of Adhyaksh that may have occurred due to election of the petitioner to the Legislative Assembly shall not be filled up. The argument on behalf of the petitioner is that the institutions like Zila Panchayats are local Self-Government at the village level. There are other similar institutions at the intermediate and district level such as municipalities including municipal corporations. The main emphasis of the arguments of the petitioner is that after the insertion and enforcement of Part IX of the Constitution of India by virtue of the Seventy Third Amendment Act of 1992, these institutions became Self-Government.;