S. K. Dhaon, J. - (1.) ON 5th May, 1989, we had dismissed this petition in limine for reasons to be given later on. We are now giving the reasons.
(2.) THIS petition, at the instance of a Municipal Board through its President, stems from proceedings initiated by the President of the Board to elect a Vice-President. The President convened the meeting of the Board for the purpose of electing a Vice-President and fixed 23rd February, 1989 as the date of the election. Some one presented a memorandum to the Commissioner, Moradabad Division and upon that memorandum, on 20th February, 1989, the Commissioner directed that the election shall not take place on 23rd February, 1989, as the meeting of the Board for holding an election of the Vice-President had not been called by the District Magistrate in accordance with section 54-A (2) of the U. P. Municipalities Act, 1916 (hereinafter referred to as the Act). This order of the Commissioner is being impugned in the present writ petition. In the forefront the contention raised on behalf of the petitioner is that in a situation where the President of the Board is functioning and the contingencies enumerated in sub-section (1) of section 54-A are not in existence, the provisions of sub-section (2) of section 54-A will have no application and the President alone will have the jurisdiction to conduct the election of a Vice-President. Reliance is placed upon a decision of a learned Single Judge of this court in Civil Misc. Writ Petition No. 7963 of 1974, decided on 17th January, 1975. This decision fully supports the contention of the petitioner. This decision shall hereinafter called Ballabh Das Agarwal's case.
(3.) IN Ballabh Das Agarwal's case, this court considered section 54 and 54-A before the enforcement of the U. P. Urban Local Self Amendment Act, 1976 (U. P. Act 41 of 1976 with effect from 15th September, 1976). This court took the view that under the provisions of sub-sections (2) to (9) of section 54-A the District Magistrate, to the exclusion of the President, could conduct the election of a Vice-President only in the situation where a person on being elected President failed or refused to function or otherwise was not able to function, or a casual vacancy occurred in the office of the President within the meaning of section 44-A. Learned Judge laid emphasis on the marginal note to section 54-A. The learned Single Judge emphasised on the fact that by introducing section 54-A the Legislature did not intend to alter the normal procedure for the election of a Vice-President, that procedure being the election by a special resolution as provided by section 54 and the compliance of sections 87 and 88. After the decision of Ballabh Das Agarwal's case, the relevant provisions of the Act were either amended or fresh provisions inserted by the Legislature by the U. P. Act No 41 of 1976 and subsequent legislations. We have, therefore, to find out as to whether the Legislature intended to accept the law as laid down in Ballabh Das Agarwal's case or it intended to deviate from the same.;