- (1.) Facts in short are as follows. Petitioner No. 1 Maviya Ali was elected as the Chairman, Municipal Board, Deoband, District Saharanpur in the elections held in 2012. The petitioner No. 2 is stated to have been elected as a Corporator in the said election while the petitioner No. 3 claims to have been elected as President of the Municipal Board, Deoband, Saharanpur. The petitioner Maviya Ali is stated to have been subsequently elected as a Member of the Legislative Assembly (M.L.A.) in the byelections held in the month of February 2016. Because of the election of Maviya Ali as a Member of the Legislative Assembly the post of Chairman of the Municipal Board, Deoband has been declared vacant as Sri Maviya Ali is stated to have been disqualified to continue as the Chairman.
(2.) The State Government issued a notification on 16 March 2001 stating that Maviya Ali must resign from the post of Chairman and in his place an Administrator be appointed till the resultant vacancy occurring on the post of Chairman is filled in accordance with the provisions applicable. As a consequence thereto, the Prabhari Adhikari, Local Bodies/Additional District Magistrate (Administration) Saharanpur had requested Maviya Ali to act in accordance thereto. It is against these two orders that the present writ petition has been filed with a further challenge to the vires of Section 13DD as added to U.P. Act No. 2 of 1916. For the purposes of appreciating the challenge to the vires, it would be necessary to reproduce the provision which reads as follows: "13DD. Bar of legislators becoming or continuing as President or Member Notwithstanding anything to the contrary contained in any other provision of this Act. (a)a person shall be disqualified for being elected as, and for being a President or Member, if he is a Member of Parliament or of the State Legislature; (b) if a person, after his election as President or Member, is subsequently elected or nominated to any of the offices referred to in clause (a) he shall on the date of first publication in Gazette of India or of the Uttar Pradesh of the declaration of his election for nomination, within a period of fourteen days from such notification, intimate by notice in writing signed by him and delivered to any person authorized by the Government in this behalf, submit his option, in which office he wishes to serve and any choice so intimated shall be conclusive, failing which he shall upon the expiry of the said period, cease to hold the office of the President or Member and casual vacancy shall thereupon occur in the office of the President or Member as the case may be."
(3.) From a simple reading of the aforesaid provision, it shall be amply clear that a person after being elected as a member of the municipal Board on being subsequently elected and nominated to any of the offices referred to in sub clause (a) i.e. member of Parliament or the State Legislature shall be required to submit an option within fifteen days as to which of the two offices he proposes to retain. In case such an option is not exercised he shall cease to hold the office of President or member of the Municipal Board and a casual vacancy thereupon shall occur in the office concerned.;