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TMI Blog1966 (12) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Board and calling upon them to enter a statement of their defence by June 26, 1966. On July 1 1966, the Commissioner made an order removing Sanaullah Sardar and Mohammad Yusuf from membership of the Board. The meeting for consideration of the motion of non-confidence was held on July 3, 1966. It was presided over by Sri. B. N Misra, Additional Civil Judge. Eleven members of the Board, including Sanaullah Sardar and Mohammad Yusuf. who had signed the notice of intention to make the motion, were present. Upon examination of the members 'list, the judicial officer discovered that Sanaullah Sardar and Mohammad Yusuf were not shown therein and thereupon, he directed them to leave the meeting. They made an application to the judicial officer urging that they had not been removed in accordance with law and that effect should not be given to the order of the Commissioner and they should be considered as continuing members of the Board. The judicial officer, however, rejected the application. The other members present also requested the judicial officer to permit Sanaullah Sardar and Mohammad Yusuf to participate in the meeting but that request was also turned down. Then the judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders of removal are invalid. He urges that the provisions of Section 40(1) (a) of the U. P. Municipalities Act are satisfied inasmuch as the two members had absented themselves from the meetings of the Board for more than three consecutive months and for more than three consecutive meetings without obtaining sanction from the Board and that they had been afforded adequate opportunity of explanation before action was taken against them 7. The relevant provisions of Section 40 read as follows: 40 Removal of members -- (1) The State Government in the case of a city, or the Prescribed Authority in any other case, may remove a member of the board on any of the following grounds:-- x x x (4) Provided that when either the State Government or the Prescribed Authority, as the case may be proposes to take action under the foregoing provisions of this section, an opportunity of explanation shall be given to the member concerned, and when such action is taken, the reasons therefore shall be placed on record x x x x x (6) Without prejudice to any of the foregoing powers the State Government or the Prescribed Authority, as the case may he may on any of the grounds referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if that be taken as the starting point for computing the period, it seems to us that three consecutive months did not elapse during which Sanaullah Sardar was absent from the meetings of the Board. In taking this view, we are fortified by the decision of Warrington, J. in Kershaw v. Shoreditch Corporation. (1907) 95 LT 55 where upon comparable language he held that the absence must begin to be reckoned on the first meeting at which the alder man was absent 9. Then Mr. Shukla says that three consecutive months must mean three consecutive British calendar months apparently by reference to Section 4(28) of the U P General Clauses Act. According to him. the calendar month commences from October 1. 1966 in which the meeting of October 30 was held, and this would mean that three consecutive months are completed on December 31, 1965 Here again we must differ from Mr Shukla The calendar month commenced on October 30, 1965 and ended on November 29, 1965 Then followed the next calendar month commencing Novem-ber 30, 1965 and ending December 29, 1965. Finally the third calendar month commenced on December 30, 1965 and ended on January 29, 1906 We are supported in this view by South Briti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of March 15, 1966 is disputed between the parties, and as the material before us is inadequate for the purpose of holding that Mohammad Yusuf did in fact attend that meeting we take it that he absented himself from the meeting of March 15, 1966 Section 40(1)(a) contemplates an absence from the meetings of the Board for more than three consecutive months This as we have held, refers to the period during which the meetings in question were held, commencing with the first meeting from which the member absented himself and ending with the last meeting from which he was absent Measured by this rule, the period of three months commencing from January 28, 1966 did not expire when the last meeting of March 15, 1966 was held it must, therefore, be held that Mohammad Yusuf. although absent from three consecutive meetings did not absent himself from the meetings for more than three consecutive months. Since the latter period of absence is the longer, it is apparent that the order removing Mohammad Yusuf is also not in accord with Section 40(1)(a). 11. In our judgment, the orders removing Sanaullah Sardar and Mohammad Yusuf did not satisfy the provisions of Section 40(1)(a) and we hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us that recourse to those mode was not permissible The Prescribed Authority was selected by the Statute to take action against a member under Section 40(1) and under Section 40(4) it is that authority which must give an opportunity of explanation to the member concerned. The Commissioner, in the instant case, directed the District Magistrate to arrange to effect personal service upon the two members. As it transpired, that was not found possible. It seems the District Magistrate on his own directed the Tahsildar to effect substituted service by the modes specified in Section 303(b), and service was effected accordingly. It does not appear that recourse was had to Section 303(b) at the instance of the Commissioner. We express serious doubt upon the validity of such service 16. However, we have found that the orders of removal contravene Section 40(1) (a) and Section 40(4). we find it unnecessary to express any opinion on the question whether the notices dated June 10, 1966 were served upon the two members in fact and in law 17. Mr L. P. Naithani. on behalf of the respondents, attempted to establish that the Commissioner and the District Magistrate acted mala fide, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. If the conditions exist, the Commissioner is armed with the power. If not. Section 40 (1) (a) confers no power at all upon him, and an order made by him is an order without power and totally lacking legal sanction and therefore, a nullity 20. Then we have also held that the notices issued under Section 40(4) did not give to the two members the opportunity of explanation contemplated by that provision Section 40(4) is a mandatory provision of law, and it is clear that before action is taken under Section 40(1) the Commissioner is bound to afford an opportunity of explanation to the member concerned. When is an order a nullity has been recently discussed by the Supreme Court in Ram Swarup v. Shikar Chand [1966]2SCR553 and it seems to us that the cases before us fall within the rule laid down there A denial of the rule of natural justice requiring a person to be heard before action is taken against him results in a null and void order That was laid down by the House of Lords, by majority in Ridge v. Baldwin. 1964 AC 40 where the Chief Constable of a borough police force had been dismissed without being informed of the charge against him and without being given an opportunity of ..... 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