V.N. Khare, J.@mdashMunicipal Board Gopiganj is established and constituted under the U.P. Municipalities Act, 1916 (hereinafter referred to
as ""the Act""). After the Members and the president of the Board were elected the State Government by its Notification dated 21-11-1988 issued
u/s 56 of the Act, declared that the Board has been constituted. On 29-11-1988 the Chairman of the Board took oath of the office and on 16-2-
1989 the Members of the Board were administered oath of their office. 28-2-1989 was fixed for holding election for Senior and Junior Vice-
President. On the date so fixed, Respondents No. 3 and 4, namely. Azad Akhar Siddiqui and Vinod Kumar Yadav were elected as Senior and
Junior Vice President respectively. Petitioner No. 1 who is an elector and Petitioner No. 2 who is the Member of the Board, by means of this
petition under Article 226 of the Constitution of India have challenged the election of Respondents No. 3 and 4 as Senior and Junior Vice-
President, being illegal and void-
2. The argument of the learned Counsel for the Petitioner is that the election of Senior and Junior Vice-President under Sub-Section (I) of Section
54 of the Act has to be held within three months from the date of the constitution of the Board, and since the elections of Respondent No 3 and 4
as Senior and Junior Vice-President of the Board u/s 54(1) of the Act were held after expiry of three months from the date of constitution of the
Board, their election is illegal. In substance, the argument is that in case the election of Senior and Junior Vice-President of the Board is held after
three months of the date of constitution of the Board, it can only be held under the provisions of Section 54-A of the Act.
3. A Full Beach of that Court in Kalyan Dutt Kaushik v. District Magistrate, Hardwar 1991 (2) UP LB and EC 911, has held that in case election
of Senior Vice-President and Junior Vice-President is not held within three months of the date oL constitution of the Board, it can be held in
accordance with the procedure laid down u/s 54-A of the Act; Admittedly, in the present case, the Senior and Junior Vice-Presidents were
elected after three months of the date of constitution of the Board u/s 54(1) of the Act and, therefore, the said election is contrary to law.
4. Sri H.N. Shukla, who appears for Respondents No. 3 and 4, however, urged that the Board could not be said to be constituted from the date
of Notification issued u/s 56 of the Act, but it is deemed to be constituted when the President takes oath of the office. According to him in the
present case the President took oath of office on 29-11-1988 and the period of three months should be reckoned from that date. In substance, the
argument is that unless the President is competent to convene the meeting he cannot convene the meeting under Sub-section (1) of Section 54 of
the Act for holding the election of Senior and Junior Vice-President.
5. Section 56 of the Act provides that every election and nomination of a member or president of a Board, and due constitution of the Board and
every vacancy in the office of Member or President, shall be notified in the official Gazette. Sub-section (4) of Section 43-D provides that as soon
as may be after the constitution of the Board, the District Magistrate shall convene a meeting of the Board for the administration of oath or
affirmation under this Section in the manner prescribed and such meeting shall be presided over by the District Magistrate or in his absence by a
Deputy Collector nominated by him in this behalf. Further Section 46 of the Act provides that the term of the office of the President shall be co-
terminus with the term of the Board. Section 10-A of the Act further provides that the term of the Board shall be five years from the date of
issuance of the Notification u/s 56 of the Act.
6. Further, the Rules regarding convening of meeting for the administration of oath or affirmation to the Constitution of India for Chairman/President
and Members of the Board (hereinafter referred to as the Rules), with reference to Clauses (a) and (b) of Sub-Section (i) of Section 296 and
Section 43-D of the Act, provide that the District Magistrate shall, as far as possible within seven days after the constitution of the Board, convince
a meeting of the Board under Sub-section (4) of Section 43-D for the administration of oath or affirmation to the President and Members of the
Board-
7. The aforesaid provisions make it clear that the Constitution of the Board by issuance of Notification u/s 56 of the Act constituting the Board and
taking of oath by the President and Members of the Board contemplate two different situations. The constitution of the Board cannot be
postponed till the date of taking of the oath or affirmation by the Member or the President of the Board. In fact, constitution of the Board has to
precede administration of oath of office to the President and Members of the Board. As soon as the Notification u/s 56 of the Act is issued by the
Government declaring the Board as constituted, the constitution of the Board stands completed, and nothing further is required so for as the
constitution of the Board is concerned. In view of this we find no merit in the submission made by the learned Counsel for the Respondents. In
view of the act that in the present case. Senior and Junior Vice-Presidents were elected after three months of the date of constitution of the Board,
u/s 54(1) of the Act their elections suffer from legal infirmity. In fact, their elections ought to have held u/s 54-A of the Act.
8. We accordingly, quash the resolution of the meeting of the Board passed in the meeting held on 28-2 1989 wherein Respondents no 3 and 4
were elected as Senior and Junior Vice-President and by a writ of co warranto oust them from working as Senior Vice-President and Junior Vice-
President-In view of the fact that there is no elected President and by our order the Senior and Junior Vice-President are being ousted we direct
the District Magistrate, Varanasi, to convene the meeting u/s 54-A of the Act for electing a Junior and Senior Vice-President if possible, within two
months from the date of service of a certified copy of this order upon him.
9. The writ petition succeeds and is allowed. There shall be no order as to costs.