1966 (12) TMI 78 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the removal orders of Sanaullah Sardar and Mohammad Yusuf under Section 40(1)(a) of the U.P. Municipalities Act.
2. Compliance with Section 40(4) of the U.P. Municipalities Act regarding the opportunity of explanation.
3. Legality of the service of notices under Section 303(b).
4. Allegations of mala fide actions by the Commissioner and the District Magistrate.
5. Consequences of the invalid removal orders on the quorum and proceedings of the Board meeting.
6. Applicability of Section 113(1) and (2) of the U.P. Municipalities Act.
7. Appropriateness of relief under Article 226 of the Constitution.

Detailed Analysis:

1. Validity of the Removal Orders:
The court examined whether the removal of Sanaullah Sardar and Mohammad Yusuf satisfied Section 40(1)(a) of the U.P. Municipalities Act. For Sanaullah Sardar, the court found that he did not absent himself from the meetings for more than three consecutive months, although he missed more than three consecutive meetings. The period of absence did not exceed three months, thus contravening Section 40(1)(a). Similarly, Mohammad Yusuf was absent from three consecutive meetings but not for more than three consecutive months. Therefore, the removal orders were invalid as they did not meet the statutory requirements.

2. Compliance with Section 40(4):
The court held that the notices issued to Sanaullah Sardar and Mohammad Yusuf did not comply with Section 40(4). The notices failed to specify the action proposed against them, which is mandatory under the law. The opportunity of explanation should include both the chance to meet the charge and to question the proposed measure of punishment. The absence of such details in the notices rendered the removal orders invalid.

3. Legality of Service of Notices:
The court expressed serious doubts about the validity of the service of notices under Section 303(b). The Commissioner directed the District Magistrate to effect personal service, which was not possible, leading to substituted service by the Tahsildar. The court noted that this mode of service might not have been permissible without the Commissioner's directive, but did not find it necessary to express a definitive opinion due to the invalidity of the removal orders on other grounds.

4. Allegations of Mala Fide Actions:
The court examined the allegations of mala fide actions by the Commissioner and the District Magistrate but found no substantial evidence to support the claim. The court concluded that the actions taken by the Commissioner were possibly due to the members evading service of notices and not due to any improper motive.

5. Consequences of Invalid Removal Orders:
Since the removal orders were found to be null and void, Sanaullah Sardar and Mohammad Yusuf were considered continuing members of the Board. Consequently, the meeting for the motion of non-confidence should have had a quorum, and the judicial officer's declaration of lack of quorum was unsustainable. The meeting should have proceeded according to Section 87-A(6).

6. Applicability of Section 113(1) and (2):
The court rejected the argument that the removal of the two members created de facto vacancies under Section 113(1). The court clarified that Section 113(1) and (2) serve distinct purposes: Sub-section (1) deals with actual vacancies, while Sub-section (2) addresses participation by disqualified persons. The invalid removal orders did not create de facto vacancies, and thus, the proceedings were not protected under Section 113.

7. Appropriateness of Relief under Article 226:
The court dismissed the contention that the members should seek a remedy through a suit for damages. Given the significant impact on the democratic functioning of the Board, the court found it appropriate to grant relief under Article 226 of the Constitution to ensure the validity of the proceedings.

Conclusion:
The court agreed with the learned Single Judge's order, quashed the removal orders, and directed the reconvening of the Board meeting for the motion of non-confidence. The special appeal was dismissed with costs.