JUDGMENT Sushil Harkauli and Vikram Nath, JJ.
1. This case was taken up on a mention being made from the respondents' side at 12.00 noon today. Sri Anoop Trivedi, learned counsel representing the petitioner stated at that time, that the matter would be argued by Sri Shashi Nandan, Senior Advocate, who was busy in another case in another court-room. We, therefore, told both sides that we would take up the matter at 3 :15 p.m.
2. When the matter was taken up at 3 :15 p.m., neither Sri Anoop Trivedi nor Sri Shashi Nandan were present. In the circumstances, we heard learned counsel for the respondents. However, we did not dictate the order immediately and continued to wait for the learned counsel for the petitioner till 3 : ", 40 p.m., hearing other cases in the meantime. At 3 : 40 p.m. Sri Anoop Trivedi appeared and asked for adjournment for the day.
3. Because, there was an interim order operating in favour of the petitioner which, due to the reasons given below, is wholly undeserved and because the learned counsel have been given enough time and notice, therefore, we decline to adjourn the matter.
4. We vacate the interim order dated 15th April 2005 passed in this writ petition. The reasons are as follows.
5. According to an amendment by the Amending Act No. 8/2005, Section 25A has been inserted in the U.P. Municipal Corporations Act, 1959, which provides that no person "shall become" or "continue as Mayor", if he is a Member of Parliament or State Legislature. The vires of the said amendment has been challenged in this petition.
6. The petitioner in this case was elected on 30th November 2000 as a Mayor before the date of the amendment and had been elected a Member of Parliament on 10th May 2004, also before the amendment, which came into effect on 24m March 2005.
7. The stay order dated 15th April 2005 has been passed on the sole ground that Section 25A inserted in the U.P. Municipal Corporations Act, 1959 by amending Act No. 8/2005 can not have retrospective operation and it cannot take away the right of a Mayor elected to that office prior to the introduction of the amendment.
8. So far as we are aware, if the legislature has the legislative competence to enact law on a subject, it also has legislative competence to amend the law retrospectively. The only exception to this is under Article 20(1) of the Constitution of India, which prohibits ex post facto creation of an offence.
9. Therefore, as a principle of law, it can not be said that it was not permissible for the amending Act No. 8 of 2005 to have retrospective operation.
10. The right to hold an elected, office of Mayor is not a fundamental right but is merely a statutory right created by the U.P. Municipal Corporations act, 1959. When a statute creates a right, the statute can also take it away.
11. Therefore, in view of the amendment, the petitioner could not have been permitted to continue as Mayor. The stay order was, therefore not called for.