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2014 DIGILAW 275 (UTT)

DEEP SHARMA v. STATE OF UTTARAKHAND

2014-07-10

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J (Oral). The result of election of municipal President and councilors was declared on 30.04.2013; 20 municipal councilors and one President were declared elected; first meeting of the Municipality was convened by the District Magistrate, which was presided over by the Deputy Collector/ SDM, Rishikesh, on 03.05.2013; wherein 8 newly elected municipal councilors and President could subscribe the oath, as required under Section 43-D of the U.P. Municipalities Act, 1916; rest of the 12 members, thereafter, approached to the Government to subscribe them oath; second meeting was convened for and held on 08.06.2013 in the office of SDM and presided over by SDM wherein 12 remaining newly elected municipal councilors subscribed the oath. 2. Mr. Ravi Babulkar, Advocate appearing for the petitioner, has vehemently argued that as per sub-Section 2 and sub-Section 4 of Section 43-D, oath can be subscribed to the newly elected members and President only in three subsequent meetings of the Board and learned SDM was not authorized to convene a meeting in his chamber and subscribe the oath to remaining 12 newly elected municipal councilors, therefore, oath subscribed to remaining 12 newly elected municipal councilors was bad in law, consequently, respondents no. 4 to 15 have ceased to occupy office of members of Municipality. 3. 4 to 15 have ceased to occupy office of members of Municipality. 3. Section 43-D of the U.P. Municipalities Act, 1916 reads as under: “43-D Oath of allegiance and office (1) The President and every member of a Municipality shall, before taking his seat, make and subscribe at a meeting of the Municipality an oath or affirmation of his allegiance to the Constitution in the following form- “I AB having been elected a member / President of this Municipality do swear in the name of God / solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, and that I will faithfully and conscientiously discharge the duties upon which I am about to enter.” (2) The President or the members who fails to make, within three months of the date on which his term of office commences or at any one of the first three meetings of the Municipality, held after the said date, whichever is later, unless this period is extended by the District Magistrate, the oath or affirmation laid down in and required to be taken by sub-section (1) shall cease to hold his office and his seat shall be deemed to have become vacant. (3) Any person required under sub-section (1) to make an oath or affirmation shall not take his seat at a meeting of the Municipality or do any act as a member or President of the Municipality unless he has made and subscribed an oath or affirmation as laid down under sub-section (1). (4) Within seven days of the constitution or reconstitution of the Municipality, the District Magistrate shall convene a meeting or the Municipality for the administration of oath or affirmation in the manner prescribed in this section and such meeting shall be presided over by the District Magistrate or in his absence by a Deputy Collector nominated by him in his behalf. The meeting, so convened shall be treated as the first meeting of the municipality. (5) The Executive Officer shall, as soon as may be, report to the District Magistrate the name of the President or Member, if any, who ceases to hold his office under sub-section (2).” 4. The meeting, so convened shall be treated as the first meeting of the municipality. (5) The Executive Officer shall, as soon as may be, report to the District Magistrate the name of the President or Member, if any, who ceases to hold his office under sub-section (2).” 4. A bare perusal of Section 43-D would demonstrate that every elected President and member shall make and subscribe an oath or affirmation, at the meeting of Municipality before taking his seat. 5. Sub-Section 4 of Section 43-D would demonstrate that the District Magistrate, within 7 days of the Constitution of the Municipality, shall convene a meeting of the Municipality for administration of oath or affirmation, in the manner prescribed in this section and such meeting shall be presided over by the District Magistrate or in his absence by a Deputy Collector nominated by him. Sub-Section 4 further demonstrates that meeting, so convened for the purpose of subscribing the oath or affirmation, shall be treated as first meeting of the Municipality. 6. As per sub-Section 2, left over members or President, who could not subscribe the oath at first meeting, may subscribe oath or affirmation, thereafter, within 3 months of the date on which his term of office commences or at any one of the first three meetings held after the said date. 7. A conjoint reading of sub-Sections 2 and 4 would demonstrate that meeting convened for the purpose of subscribing the oath or affirmation shall be treated as first meeting of the Municipality. In other words, meeting convened for the purpose of administering / subscribing the oath shall be termed as meeting of Board. Consequently, second meeting held on 08.306.2013 was also meeting of the Board wherein remaining newly elected councilors subscribed the oath. Holding meeting of Board in the chamber of SDM is not barred. Same at the most can be said to be mere irregularity. Irregularity cannot result in the disqualification of the councilors. 8. Consequently, writ petition fails and is hereby dismissed. IA No. 2637 of 2014 also stands disposed of.