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Allahabad High Court · body

1991 DIGILAW 1290 (ALL)

NAZAR HUSSAIN v. TOWN AREA COMMITTEE PURKAZI

1991-10-08

K.NARAYAN, S.K.DHAON

body1991
JUDGMENT : 1. The election of the Vice-Chairman of the Town Area Committee, Purkazi (hereinafter referred to as the Committee) was scheduled to be held on 22nd August, 91. It appears that the notice of the meeting of the Committee was given by the Chairman of the Committee. It also appears that the election of a Vice-Chairman was to take place after the expiry of a period of three months from the constitution of the Committee. At that stage, the Petitioner came to this Court with this petition. 2. On 22nd August, 91, this Court passed an interim order to the effect that the election may take place but the result thereof shall not be announced. The only argument advanced in support of this petition is that the election of the Vice-Chairman should have taken place in accordance with the provisions of Section 54-A of the U.P. Municipalities Act as extended to the Town Areas in this State by means of a notification dated 7th May, 59 which was published in U.P. Gazette dated 16th May, 59. 3. It is not in dispute that Section 54 of the U.P. Municipalities Act has not been so far extended to the Town Areas Section 8-B of the U.P. Town Area Act (hereinafter referred to as the Act) provides inter alia that the Committee shall elect a Vice Chairman from amongst the members whenever a vacancy occurs. Section 8-A provides for the election to the office of the Chairman It is evident that the Chairman also becomes a member of the Committee after election. It is also not in dispute that in the normal course, a Chairman is entitled to preside over the meeting of the Committee wherein a Vice Chairman is to be elected. However, the contention is that in view of Section 54-A aforementioned, the District Magistrate alone can convene the meeting of the Committee and a stipendiary Civil Judicial Officer can alone preside over such a meeting. 4. However, the contention is that in view of Section 54-A aforementioned, the District Magistrate alone can convene the meeting of the Committee and a stipendiary Civil Judicial Officer can alone preside over such a meeting. 4. Sub-section (1) of Section 54-A provides that where a person on being elected Chairman fails, or refuses to function or is otherwise not able to function, and a Vice-Chairman has not been elected in accordance with the Act, the powers and functions of the Chairman except presiding at a meeting of the Committee shall, until a Vice-Chairman has been elected, be exercised and performed, if the District Magistrate so directs and subject to such conditions as he may specify, by the officer-in-charge of the sub-division in which the town area is situated, to whom power may have been delegated u/s 4 of the U.P. Town Areas Act, 1914. Thereafter, it is provided that the procedure as enumerated in Sub-sections (2)(9) shall be followed for the election of the Vice-Chairman. 5. It is clear from a reading of Sub-section (1) of Section 54-A that upon the default of the Chairman and if the Vice Chairman has not been elected, the powers and functions of the Chairman shall be exercised by an officer-in-Charge of the sub-division if the District Magistrate so directs. Therefore, condition precedent to the coming into play of the provisions as contained in Sub-section (1) so as to deprive the Chairman from exercising the powers and functions of a Chairman is the direction of the District Magistrate. It is not the case of the Petitioner that any such direction was ever issued by the District Magistrate. It is also not the case of the Petitioner that at any stage was the Chairman prevented from exercising the powers and functions of the Chairman because the Officer-in-charge of the sub-division has taken over the powers and functions of the Chairman. In other words it has to be assumed for the purposes of this petition that the Chairman continued to be in existence and he continued to exercise the powers and functions vested in him. Once it is found that the Chairman continue to be in existence on the scene, the question of Sub-sections (2) to (9) of Section 54-A being applied or becoming applicable for the purpose of holding the election of the Vice-Chairman does not arise. 6. In Rishi Kumar Gupta and Others Vs. Once it is found that the Chairman continue to be in existence on the scene, the question of Sub-sections (2) to (9) of Section 54-A being applied or becoming applicable for the purpose of holding the election of the Vice-Chairman does not arise. 6. In Rishi Kumar Gupta and Others Vs. Nanoomal Yadav and Others, AIR 1976 All 365 , a Division Bench of this Court ruled that Section 54-A will not come into play so long as the Chairman continues to exist in a particular town Area Committee even though his existence is illegal. 7. In 1976 Section 54 of the U.P. Municipalities Act was subjected to a change. In it, Sub-section (4) was inserted. In substance in Sub-section (4), it is mentioned that the election of a Vice-President, in the event of a vacancy to that office, shall be held within a period of three months from either the date of the constitution of the Municipal Board or from the date of occurrence of the vacancy. Some changes were also made in Section 54-A of the U.P. Municipalities Act, 1976. It is to be remembered that Section 54 has not been extended to the Town Areas in this State. It is also to be noted that subsequent to 7th May, 59, no fresh notification was issued by the State Government extending the provisions of Section 54-A of the U.P. Municipalities Act. Thus, it is evident that Section 54-A of the U.P. Municipalities Act as amended in 1976 has not been extended to the Town Areas. We have, therefore, to confine our attention to the provisions as extended by the notification dated 7th May, 59. 8. Taking into account the amendments made in 1976 in the Municipalities Act, a Full Bench of this Court in the case of K.D. Kaushik v. District Magistrate Hardwar 1991 (9) UPLBEC 911, while interpreting Sections 54 and 54-A of the UP. Municipalities Act held that normally u/s 54 of the President of the Board alone is entitled to convene the meeting of the Board for electing a Vice-Chairman and also to preside in that meeting. Municipalities Act held that normally u/s 54 of the President of the Board alone is entitled to convene the meeting of the Board for electing a Vice-Chairman and also to preside in that meeting. However, on an interpretation of Sub-section (4) of Section 54, it has taken the view that if the election is not held within a period of three months either from the date of the constitution of the Board or from the date of occurrence of the vacancy, the election of the Vice-Chairman shall be held in accordance with Section 54-A. Therefore, so far as the Town Areas are concerned, the election of the Vice-Chairman shall continue to be held under the provisions of Section 8-B of the Act in spite of the fact that the election of the Vice-Chairman is held or has taken place after the expiry of a period of three months either from the date of the constitution of the Board or from the date of the occurrence of the vacancy. The opinion of the Full Bench in the aforementioned case that after the expiry of three months the election of the Vice-President shall take place only in accordance with Section 54-A, has no application to the election of a Vice-President held under the Act. 9. This petition has, therefore, no substance. It is accordingly dismissed. The interim order dated 22-8-91 is vacated.