Hon'ble Ritu Raj Awasthi,J.
Notice on behalf of the respondent No. 1 has been accepted by the learned Chief Standing Counsel and Sri O.P. Srivastava, has accepted notice on behalf of respondent no. 2.
Issue notice to respondent No. 3, returnable at an early date. By means of this Public Interest Litigation, the petitioner challenges the vires of the proviso to Section 6 of U.P. Act No. 8 of 2005 of the Uttar Pradesh Urban Local Self Government Laws (Amendment) Act, 2005, on the ground that the said proviso is not only arbitrary and illegal but contrary to the constitutional provision as proviso to Article 243-R of the Constitution of India, specifically prohibits the right to cast vote by the nominated members in the meetings of local authorities or the bodies may be municipalities or municipal Corporations, whereas the proviso aforesaid brought into force by U.P. Act No. 8 of 2005, permits the nominated members to exercise their right to vote in the meetings of the local bodies/authorities. This issue is engaging the attention of the Court in certain other petitions also in which notices have also been issued to the learned Advocate General. Let notice to the present petition be also issued to the learned Advocate General.
Besides the aforesaid challenge, it is also the case of the petitioner that nominated members of local bodies/authorities, who do not have a right to vote in the Municipal Corporations or Nagar Palikas, cannot be allowed to vote in the election scheduled for electing the members to the State Legislative Council and inclusion of their names in the voter-list is per se illegal and without any authority, and that previously such members were not being allowed to vote in the election in question.
Further argument is that the Governor has nominated the members in various local bodies/authorities on 21.12.2009, which was published in the official gazettee on that very date itself and, therefore, the name of such nominated members could not have been included in the voter roll as the 21.12.2009 was also the date of filing nomination and under the provisions of Sections 22 and 27 of the Representation of People Act, 1950, the electoral roll could not have been corrected after the date of nomination.
• A further plea has been raised that even if it is supposed that the nomination was done by the Governor on 21.12.2009 and duly published in the official gazette, as Sri J.N. Mathur, learned Addl. Advocate General, submitted on 21.12.2009 itself, even then in the absence of oath being given to the representatives/nominated members of the local authorities and bodies, they could not have been given the right to vote in the election of the Legislative Council.
Sri J.N. Mathur, learned Addl. Advocate General assisted by Sri D.K. Upadhyaya, learned Chief Standing Counsel, in response to the pleas raised by the learned counsel for the petitioner submitted that once such members have been nominated by the Governor, may be on 21.12.2009 itself i.e. on the date of nomination and the electoral roll could have been revised till that date, if the names of these nominated members have been included in the voter-list, no illegality can be said to be committed in holding the elections. He further submitted that under Section 27 (2) (d), it is the duty of the Electoral Officer to correct the voter-list immediately on getting such information. Sri Mathur further relies upon the provisions of Article 171(3)(a) of the Constitution, in support of his plea, that even if the nominated members cannot be allowed to vote in the meetings of the Local Bodies/authorities, they cannot be restrained from voting in the election of the legislative counsel, as there is no bar under the said provision, for such nominated members from voting. Further argument is that nominated members are 'members' as any other member as defined in section 2(38) of the U.P. Municipal Corporation Act, and therefore also, the aforesaid plea cannot be accepted. It is also submitted by Sri Mathur that the petitioner has not impleaded any person, who may be affected by any order passed in the instant petition and, therefore, the writ petition is also not maintainable and no interim order can be granted in favour of the petitioner.
The question raised in the instant petition requires consideration after the affidavits are exchanged.
Let the counter affidavit be filed within three weeks. List immediately thereafter.
In the meantime, elections so held shall be subject to further orders of the Court.
Order Date :- 6.1.2010 Arjun