Umar Hayat Khan vs District Magistrate, (Sri A.P. Singh) and Others

K.N. Singh, J.—The President of the Municipal Board, Jalesar, was removed from office as motion of no confidence was passed against him. In the absence of the President, Senior Vice President is functioning as, the Acting President. This situation has encouraged party politics amongst the members of the Municipal Board with a view to elect Senior Vice President of their own choice. The Petitioner claims that he was elected Senior Vice President on 24-6-1974 by an unanimous resolution of the Board. The District Magistrate passed an order on 26-7-1974 on the report of the Sub-Divisional Officer who had held an enquiry into the matter, that no resolution of the Board had been ever passed electing the Petitioner as Senior Vice President, The District Magistrate therefore directed that Junior Vice President, Mohd. Mansha Allah Khan will function as the Acting President. The Petitioner thereupon filed the present petition challenging the order of the District Magistrate dated 26-7-1970.

It is urged on behalf of the Petitioner that once Petitioner was elected Senior Vice President by the Board, the District Magistrate had no authority in law to direct that the Junior Vice President Mohd. Mansha Allah Khan will function as the Acting President. It is true that under the provisions of the U.P. Municipalities Act if a person is elected Senior Vice President at a meeting duly convened for the purpose of holding the election of Vice President the District Magistrate has no power to restrain the Vice President so elected from functioning as Acting President u/s 54-A of the Act. But if the meeting is not validly convened or if no agenda is circulated for the purpose of holding the election or if no resolution is adopted by the members present at such a meeting there would be no valid election in the eye of law. In the instant case a detailed counter affidavit has been filed by Krishna Prasad Sharma. A perusal of that counter affidavit shows that 10 members of the Municipal Board made a written complaint before the District Magistrate that the matter of election of Vice President was not considered at the meeting of the Board held on 24-6-1974. No Agenda was issued for that purpose and no resolution was passed electing the Petitioner as Senior Vice President. The resolution relied upon by the Petitioner was alleged to have been forged. The Sub-Divisional Magistrate, Jalesar, held an enquiry into the matter, he recorded statement of members including that of the Petitioner and thereafter he submitted report to the District Magistrate that the meeting was not held in accordance with law and that no resolution was ever passed at the said meeting electing the Petitioner as Senior Vice President. The District Magistrate concurred with that report and thereafter he passed the impugned order directing that the Petitioner will not function as Senior Vice President, instead the Junior Vice President will function as the Acting President. These facts clearly show that there is a serious dispute about the existence of the resolution which is alleged to have been passed on 24-6-1974. If no such resolution was passed the Petitioner has no right to function as Senior Vice President or as Acting President. On the material on record it is not possible to hold that in fact a resolution hid been passed by the Board electing the Petitioner as Senior Vice President on 24-6-1974.

Section 54 of the U.P. Municipalities Act, 1916 makes provision for election, term of office and resignation of Vice President. It lays down that the term of the office of the Vice President shall be one year from the date of his election or the residue of his term of office as a member of the Board whichever is less. The Petitioner has asserted that he was elected Senior Vice President on 14-7-1973 and his one year''s term was to expire on 13-7-1974. The question then arises as to whether the Petitioner could be elected Senior Vice President on 24-6-1974 i.e. 19 days before the expiry of his term. Sub-Section (2) of Section 54 of the Act is quite clear in this respect. The term of the Vice President commences automatically from the date of his election and the term is fixed by the Act itself. That term cannot be curtailed by electing another Vice President before the expiry of one year. Election of, Vice President before the expiry of the term of the continuing Vice President would necessarily invoke curtailment of term of the out-going President which is not permissible u/s 54 of the Act. On 24-6-1974 there was no vacancy in the office of the Senior Vice President''s the Petitioner''s term of one year had not expired, therefore no election could be held. The election of Vice President on 24-6-1974 was illegal is it purported to curtail the term of the Vice President which was to expire on 13-7-1973. For this reason also the Petitioner''s election as Senior Vice President, is vitiated.

Learned Counsel for the Respondent urged that on 17-3-1975 fresh elections have been held and Kailash Chandra Agrawal has been elected as Senior Vice President and he is functioning as Senior Vice President and as such the petition has become infructuous. The Petitioner has disputed these facts in his rejoinder affidavit. It is urged on behalf of the Petitioner that the meeting dated 17-3-1975 was not held in accordance with law and Kailash Chandra Agrawal has no authority to hold the Office of the Senior Vice President or to function as the Acting President. I need not decide, this question in the present petition. The Petitioner has not challenged the validity of the meeting held on 17-3-1975. The writ petition was not amended and Kailash Chandra Agrawal who is alleged to have been elected as Senior Vice President has not been impleaded as a party. In the circumstances the validity of the meeting of the Board held on 17-3-1975 cannot be considered in the present petition.

In the. result the petition fails and is accordingly dismissed. There will be no order as to costs.