- (1.) The order of reference succinctly brings out the controversy while posing questions which we have been asked to determine and since the referral order contains the summary of the issues it may not be necessary to extract the entire gamut of facts, but suffice it to say our proposed order would run sequelly to it.
(2.) We would briefly refer to the questions posed in the referral order, which are as under:- (i) Whether in counting/calculating 'not less than two-thirds of the elected members of the Committee' for successful carrying out the no confidence motion against the President or Vice-President, as provided under Section 21(3) of the Act, the nominated members who have been nominated under clauses (ii) and (iii) of Section 9(3) by virtue of their being members of the House of People and the Legislative Assembly, or members of the Council of States, have to be taken into consideration (ii) Whether the members of the State Legislative Assembly, the House of the People or the members of the Council of States, who have been nominated as members of the Committee under clauses (ii) and (iii) of Section 9(3) by virtue of their being members of the House of People and the Legislative Assembly, or the Council of States, can be deemed to be the 'elected members of the Committee' merely because they are elected members of the House of People and the Legislative Assembly, or the Council of State, particularly in view of Section 13-B of the Act (iii) Whether a member of the House of the People and Legislative Assembly can remain as elected member of the Municipal Committee or Council, as the case may be, in view of the bar created under Section 13-B of the Act -
(3.) The effect of the amendments to the statute which have necessitated the instant deliberations emanate from amendment made to the provisions of the Constitution of India in particular Article 243(R) which is extracted herebelow:- "243R. Composition of Municipalities.- (1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide- (a) for the representation in a Municipality of- (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under clause (5) of article 243S: Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality; (b) the manner of election of the Chairperson of a Municipality." Section 9 of the Haryana Municipal Corporation Act as substituted vide Haryana Act no. 3 of 1994 would read as follows:- "9. Composition of Municipalities.- (1) The municipalities constituted under Section 2A shall consist of such number of elected members not less than eleven as may be prescribed by rules. (2) Save as provided in sub-section (3), all the seats in the municipality shall be filled in by persons chosen by direct election from the territorial constituencies in the municipal area and for this purpose each municipal area shall be divided into territorial constituencies to be known as wards. (3) In addition to persons chosen by direct election from the territorial constituencies, the State Government shall, by notification in the Official Gazette, nominate the following categories of persons as members of a municipality :-- (i) not more than three persons having special knowledge or experience in municipal administration; (ii) members of the House of the People and the Legislative Assembly of State, representing constituencies which comprise wholly or partly, the municipal area ; and (iii) members of the Council of States, registered as electors within the municipal area : Provided that the persons referred to in clause (i) above shall not have the right to vote in the meetings of the municipality : Provided further that the Executive Officer in the case of a Municipal Council and the Secretary in the case of a Municipal Committee, shall have the right to attend all the meetings of the municipality and to take part in discussion but shall not have the right to vote therein.";