The phrase "total number of Councillors" in Section 55(1) of the Maharashtra Municipalities Act, 1965, refers to the total number of seats in a particular Council, as determined under Section 9 of the Act, and not the strength of the Councillors entitled to sit and vote only.

JUDGMENT - Padhye, J.

1. In a general election held on 3-6-1967, 22 Councillors were elected to the Municipal Council, Bhandara. In the first meeting held thereafter on 2-7-1967 the petitioner No. 1 Bhaskar was elected as the President of the Municipal Council and one Fattu Meshram was elected as the Vice-President Two persons were co-opted to the Council and thus the total number of the Councillors in the Bhandara Municipal Council was 24 after the co-option of the two Councillors. The Vice-President Fattu Meshram died on 18-1-1969 and his seat as an elected Councillor became vacant with the result that on his death the Council actually consisted of 21 elected Councillors and two co-opted Councillors though the normal strength of the Council was 22 elected Councillors and two co-opted Councillors.

2. On 24-1-1969, 11 members of the said Council gave a requisition to the Collector for convening a meeting to pass a resolution to remove the President of the Council, the petitioner No. 1. Accordingly, the Collector by notice dated 27-1-1969 contended a meeting of the Councillors for 1-2-1969 to consider the resolution for removing the President. The meeting was held on 1-2-1969 as scheduled at which 14 Councillors which included one co-opted Councillor were present. Some points of order were raised in the said meeting but they were over-ruled, with the result that out of the 14 Councillors two Councillors walked out leaving only 11 elected Councillors and one co-opted Councillor. The resolution was put to vote and 11 elected Councillors voted for the resolution to remove the President from his office as President.

3. After the notice as issued by the Collector and before the meeting was held, one Councillor, namely, the respondent No. 22 Natwarlal Patel, wrote a letter to the Collector that he was not served with the notice of the meeting to be held on 1-2-1969. That was one of the points of order raised in the said meeting. This letter, which is Document No. 2 at page 30 of the paper book complains that he did not receive the notice three days prior to the date fixed for the special meeting and therefore he was unable to attend the meeting and hence the special meeting called on 1-2-1969 be cancelled. He also complained that the notice was not served on him personally, but it was served on a servant as he was out.

4. The petitioner No. 2 is one of the Elected Councillors. By this petition, the petitioners challenge the resolution dated 1-2-1969 removing the petitioner No. 1 from the office of the President of the Council and also ask for a writ of mandamus against the respondents restraining them from giving effect to the resolution dated 1-2-1969 and prohibiting them from in any way interfering with the continuing of holding of the office of the President by the petitioner No. 1. By the order of this Court dated 5-2-1969 at the time of the admission of the petition, the election of a new President in place of the petitioner No.1 was ordered to be stayed.

5. The petitioners challenge the aforesaid resolution removing the petitioner No. 1 from the office of the President No. 1 from the office of the President on two grounds. The first contention is that the resolution dated 1-2-1969 has not been passed by the requisite majority of the Councillors and there for the resolution does not have the effect of the petitioner No. 1 ceasing to be the President of the Bhandara Municipal Council. According to the petitioners the majority that was required for such removal of the President in this Council would be of 13 Councillors since the Council has a strength of 24 Councillors which includes two co-opted Councillors. In the alternative it is urged that the total strength of the elected Councillors of this Council is 22 and the majority would be of 12 Councillors, and therefore the resolution passed by 11 Councillors only is ineffective to remove the petitioner No. 1 from the office of the President. The second contention raised was that t

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