R. M. Sahai, J. - (1.) THE controversy raised in this writ petition centers round the construction of Section 39 of the U. P. Municipalities Act, 1916. The facts giving rise to the petition are these:- The Municipal Board, Keirana, district Muzaffarnagar (hereinafter referred to as the Board) comprised of 17 members and the President. Nine members of the Board submitted their resignation to the District Magistrate, Muzaffarnagar, on 13th September, 1976, who passed an order on the same day under Section 10-AA (2) of the U. P. Local Government Laws (Amendment) Ordinance, 1976 (U. P. Ordinance No. 18 of 1976) (hereinafter called the Ordinance) assuming the charge as administrator of the Board.
(2.) A perusal of the said order makes it clear that at the time of assumption of charge by the District Magistrate under Section 10-AA (2) the resignation of nine members had not been forwarded to the State Government. It has been stated in the counter-affidavit filed on behalf of the District Magistrate that the letters of resignation were sent by the District Magistrate along with his letter the same day they were delivered to him i.e. 13th of September, 1976 to the Commissioner, Meerut Division for being sent to the State Government. The resignation letters appear to have been despatched from Commissioner's office on 25th September 1976 to the Governor. Between sending of these resignations by the District Magistrate to the Commissioner and its despatch from the office of the Commissioner to the State Government another important event took place on 15th September, 1976. The Governor of Uttar Pradesh issued the ordinance which amended Section 9 of the U. P. Municipalities Act. The effect of the amendment was that all the members of the House of People and the State Legislative Assembly whose constituencies include the whole or any part of the limits of a Municipality became ex-officio members of the Municipal Board of that Municipality. It is further provided that if none of the persons who so become members, is a woman, the State Government may by a notification nominate a woman as a member of the Board. The effect of this ordinance was that the member of the two legislatures within whose constituencies the limits of the municipality of Kairana fell became ex-officio members of the Board from 15th September, 1976. It is admitted that the Board has no woman member, nor has the State Government issued any notification nominating any woman as a member of the Board. The effect of this ordinance shall assume importance only if we come to the conclusion that the Board continued to be in existence till 15th September, 1976.
(3.) SIR S. N. Kackkar, appearing for the petitioner, has urged that the resignations submitted by the members of the Board did not become effective under Section 39 unless they were communicated to the State Government or at least received by the State Government. It was also argued by him that in the present case the District Magistrate exercised his power under Section 10-AA (2) even before the resignations were despatched to the State Government and that, therefore, in view of our decision in Civil Misc. Writ Petn. No. 3431 of 1976 (All) (Basudeo Gupta v. District Magistrate, Shahjahanpur) on 13th Sept., 1976 the impugned order of tile District Magistrate was liable to the struck down.;