S. D. Agarwala, J. - (1.) HEARD learned counsel for the petitioner and Sri A. P. Singh, learned Addl. Chief Standing Counsel. Learned counsel for the petitioner has contended that while conducting the election for the Presidentship of the Municipality, only members who have been elected and who constitute a class of 'members' under section 9 (b) of the Municipalities Act have a right to vote and the ex officio members and nominated members have no right to vote in the election of Presidentship of the Municipality.
(2.) IN order to test the above submission made by the learned counsel for the petitioner it is relevant to quote Section 9 and Section 43 of the Municipalities Act. Section 9 of the said Act speaks about the normal composition of the Board and Section 43 speaks about the election of the President. Section 9 and Section 43 of the said Act are quoted below : "9. Normal Composition of the Board : Except as otherwise provided by section 10, a board shall consist of :- (a) The President; (b) The elected members who shall not be less than 10 and more than 40, as the State Government may by notification in the official Gazette specify ; (c) the ex officio members comprising all members of the House of People and the State Legislative Assembly whose constituencies include the whole or part of the Municipality. (d) Ex officio members comprising all members of the council of States and the State Legislative Council who have their residence within the limits of the Municipality. Explanation:-For the purposes of this clause, the place of residence of a member of the Council of States or the State Legislative Council shall be deemed to be the place of his residence mentioned in the notification of his election or nomination, as the case may be. Provided that if none of the members elected under clause (b) is a woman the State Government may by a like notification nominate one woman as a member of the Board and thereupon, the normal composition of the Board shall stand varied to that extent. Provided further that if any member of the State Legislative Council representing the local Authorities Constituency does not have his residence within the limit of any Municipality, he will be deemed to be ex-officio member of the board of such one of the municipalities situated within his constituency as he may choose. Provided also that if none of the members elected under clause (b) belongs to safai mazdoor class, the State Government may, by notification, nominate a person belonging to the said class a member of the Board, and thereupon the normal composition of the Board shall stand varied to the extent. Explanation :-A person shall be deemed to belong to the Safai Mazdoor class if he belongs to such a class of scavengers by occupation or to such of the Scheduled Castes traditionally following such occupation as may be notified by the State Government." "43. Election of President : (1) As soon as may be, after the election of members of the Board a city other than a city declared as such under section 3 is completed at a general election, the members shall elect a President of such Board in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot. Explanation :-For the purposes of this sub-section, the election of the members of the Board shall, notwithstanding any seat remaining unfilled, be deemed to be completed if at least four fifth of total number of members fixed under section 9 have been elected. (2) The President of a Board other than a Board referred to in subsection (1) shall be elected by the electors in the municipality : Provided that if in a general election a person is elected both as member and President of the Board, to which this sub-section applies, or being a member of such Board is elected President thereof in any bye-election, he shall, except as provided in Section 40, cease to be a member from the date of his election as President." It is clear that section 43 above provides that the members shall elect a President of the Board The members of a Board are those as has been stated in section 9 above. There are four classes of members as specified in sub-section (a) (b) (c) and (d) of section 9 of the said Act. The members as enumerated in section 9 includes not only the elected members but also ex-officio members as contemplated by sub-section (c) and (d) of Section 9 of the said Act It also includes the nominated members. Under the proviso to section 9 of the said Act, it has been specifically provided that if none of the members elected under clause (b), is a woman the State Government may by a like notification nominate one woman as a member of the Board and thereupon, the normal composition of the Board shall stand varied to that extent. Under the circumstances mentioned above, we are absolutely clear in our opinion that the members who are to elect the President under Section 43 of the said Act includes all members who constitute a Board namely the elected members, ex officio members as well as nominated members In case the intention of the legislature was that only elected members shall elect a President, then the Legislature would have specifically provided that the ex officio members and nominated members would have no right to vote. This has not been specifically done. A member who constitutes a Board has a right to vote and once a member has a right to vote the said right can only be taken away by a specific legislative provision. In the absence of any such specific provision the right to vote of a member cannot be taken away. Learned counsel for the petitioner has failed to point out any provision to show that a member, either ex officio or nominated has been deprived from his right to vote under any provision of the Act.
(3.) THERE is yet another aspect of the matter. Section 10 of the said Act empowers the State Government to vary normal composition of Board. In this case also the State Government have been authorised to constitute the Board, which consists of the nominated members and elected members i. e. persons other than elected members are to be treated as members of the Board. Learned counsel for the petitioner, however, in support of his submission has relied upon Clause 35 of the U. P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1964 (hereinafter referred to as the Order. Clause 35 of the Order provides as under :- "35. List of members :-(1) As soon as may be after the election of members of a board is completed as a general election within the meaning of section 43 of the Act, District Magistrate shall cause to be prepared a list of members of the board declared elected under para 27 and 68 of the U. P. Municipalities (Conduction of Election of Members) Order 1964." The argument of the learned counsel for the petitioner is that since this clause empowers the District Magistrate to prepare a list of only elected members, consequently the constituency for election of the President of the Board is only the elected members. In our opinion, this conclusion cannot be drawn from clause 35 of the Order. This clause empowers the District Magistrate to prepare a list of elected members but it does not say that members who are ex officio or nominated members shall not form the list of members, from which the election of the President has to be made. The list of members prepared under clause 35 only relates to elected members which is contemplated under section 9 (b) of the Act. The order as well as the Act has to be harmoniously read. In case the above submission of the learned counsel for the petitioner is accepted and clause 35 of the order as read by the learned counsel for the petitioner is read then this clause goes counter to section 35 of the Act. In these circumstances, it is not possible to agree with the above submission made by the learned counsel for the petitioner. In our opinion, the President of the Board has to be elected by the elected members, ex officio members and nominated members of the Board.;