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History of the amendments made in the Municipal Act pertaining to the issues involved In view of the aforesaid amendment made in the Constitution of India, Section 9 of the principal Act was substituted in the year 1994 vide Haryana Act No.3 of 1994 (notified on 5.4.1994) as under:-

"9. Composition of Municipalities.- (1) The municipalities constituted under Section 2A shall consist of such number of elected members not less than eleven as may be prescribed by rules.

As far as the first issue was concerned, it was held that the right to vote of the nominated members cannot be restricted as it violates Article 243R of the Constitution, and the State legislative was not within its competence to create such a bar as incorporated in second proviso to Section 9(3) of the Act. In Krishan Kumar Singla's case (supra) when this issue again came up for consideration with regard to amendment made in the proviso by Haryana Act No.18 of 1996 it was held that the amended proviso was unconstitutional on the same reasoning as given in Raj Pal Chhabra's case as this amended proviso also divested the members of the House of People and Legislative Assemblies or Councils of State nominated under clause (ii) and (iii) of Section 9(3) of the Act from the right of voting. It was further held that there was no justification for debarring these members from the right of voting in special meetings or when a motion of no-confidence is being considered in relation to the President or the Vice- President of the Committee. This amendment was thus held to be arbitrary.

As far as the issue with regard to restriction of the right of nominated members is concerned, in our opinion, it does not survive as subsequently in the year 2000 the first proviso to sub-section (3) of Section 9 was substituted providing that the persons referred to in clauses (ii) and

(iii) shall not have any right to contest for the election of President or Vice- President, and the further amendment made in this proviso in the year 2005 by Haryana Act No.10 of 2005, which was omitted vide Haryana Act No.18 of 1996, was again inserted. After the said amendment the proviso to Section 9(3), which is in existence today, provides that the persons referred to in clause (i) above shall not have any right to vote and the persons referred to in clauses (ii) and (iii) shall not have any right to contest for the election of President or Vice-President. This amendment in this proviso is in consonance of Section 18(1) of the Act which provides that only an elected member of the Committee can be elected as President or Vice- President of the Committee. Now in this proviso there is no limitation or restriction to the right of vote of these persons. Therefore, at present there is no issue before us that the right of the nominated members, who have been nominated under clauses (ii) and (iii) has been restricted by the proviso added to Section 9(3) of the Act. Nobody has challenged this provision. Though we have strong reservation against the interpretation given by the Full Bench in Raj Pal Chhabra and Krishan Kumar Singla's cases (supra) in this regard, as in our view, the Full Bench have not properly appreciated clause (b) of Article 243R(1) and Article 243ZA(2) of the Constitution, which have given ample powers to the State legislature to make provisions by law with respect to all matters relating to or in connection with, election to the Municipality and election of the President or Vice-President. In our view, the State legislature in its wisdom had restricted the voting right of the nominated members under clauses (ii) and

(b) of this Article clearly empowers the Legislature of a State to provide by law the manner of election of the Chairperson of a Municipality. Obviously, being nominated members of the Committee, they could not have been given the right to contest the election of the President or Vice-President. Even this right only vests in the elected members of the Committee. Therefore, a clear distinction has been made by the State Legislature between the elected and nominated members of the Committee while enacting the law with regard to their right to vote in the election or removal of the President of the Municipal Committee. The proviso to Section 9(3) of the Act clearly provides that the nominated person has no right to contest the election of the President or Vice-President. The said right has been given only to the elected members of the Committee. In our view Section 9 (3) can be considered to be only in the nature of a removal of doubt clause. It appears to have been added as a matter of abundant caution. If the provisions are examined in the background of the objectives and purpose of the Seventy third and Seventy Fourth Amendment, which is to provide for direct democracy at the third tier, which is evident from the mandate whether in Article 243C (in relation to Panchayats) or Article 243R (in relation to Municipalities) that all seats shall be filled by persons chosen by direct election, then even in the absence of such a provision, persons provided representation in terms of clause (b) of Article 243R, could not justifiably be considered to have any right or claim to be elected as President or Vice President i.e., claim any elective office in these bodies. The emphasis is not only on direct democracy in the Panchayats and Municipalities (the third tier) as a whole, but direct democracy for each level therein. This is manifested when provisions of Article 243C(5)(b) are noticed which provide that the Chairperson of Panchayat at intermediate level or distinct level shall be elected, by and from amongst, the elected members thereof. The intention is only to enable providing for representation to them in the Municipalities. But providing for such representation is not mandatory. Legislature may or may not make provision for such representation. Further, Section 18 clearly provides that one of the elected members of the Committee shall further be elected as President of the Committee. This amendment was made vide Haryana Act No.18 of 1996 where "one of its elected members" was added in the said Section. We have to give a plain meaning to this amendment, i.e., only an elected member can become President of the Municipal Committee. The nominated member cannot be elected as President or Vice-President of the Committee. This aspect has not been considered by the Full Bench in Krishan Kumar Singla's case (supra). This position was further clarified by the amendment made in 2005 vide Haryana Act No.10 of 2005, whereby in place of first proviso, the new proviso was substituted, namely, "Provided that the persons referred to in clause (i) above shall not have right to vote in the meetings of the municipalities and the persons referred to in clauses (ii) and