BIRENDRA PRASAD SINHA, J.

1. This application under Articles 226 and 227 of the Constitution of India is by the Commissioners of Gaya Municipality through the Chairman. Shri Narmadeshwar Prasad Singh and four others, who are Commissioners of the said Municipality. It is directed against an order dated 18-12-1974, contained in Annexure 5 staying the operation of the resolution of the Municipal Board dated 25-11-1974. The petitioners have prayed for an issue of writ of certiorari quashing the stay order dated 18-12-1974 at Annexure 5 and for a writ of mandamus restraining respondent No. 4. Shri Kanhaiya Lal Chaurasia, from continuing as the Ward Commissioner of the Gaya Municipality.

2. The short facts leading to this application are as follows: The election of the Gaya Municipality was held in July, 1972 after a long spell of supersession of the Municipality, 32 Ward Commissioners including the petitioners and respondent No. 4. Shri Kanhaiya Lal Chaurasia were elected. Two more Ward Commissioners were co-opted by the elected Commissioners. Respondent No. 4, Shri Chaurasia was elected as the President of the Municipality. It is stated that Shri Chaurasiya tendered his resignation from the office of Ward Commissioner in his letter dated 26-8-1974, addressed to the Chairman of the Municipality. After some time, he sent another letter dated 30th August, 1974 to the Chairman withdrawing the resignation. The letter of resignation of respondent No. 4 was put up for consideration of the Commissioners in accordance with Sec.33 (3) of the Bihar and Orissa Municipal Act on 25-11-1974 and the same was accepted by a resolution passed at the said meeting. The copy of the said resolution has been given at Annexure 1. It is further stated that Shri Chaurasiya filed two petitions dated 5-12-1974 and 13-12-1974 before the District Magistrate, Gaya praying for stay of the operation of the aforesaid resolution of the Municipality. On 19th December, 1974, the petitioners also filed a rejoinder to the aforesaid petitions of Shri Chaurasiya. During the pendency of the aforesaid petitions before the District Magistrate, Shri Chaurasiya, respondent No. 4 met respondent No. 3. Shri Ramashray Prasad Singh, Minister of Urban Development Department. Government of Bihar, and filed a petition before him for staying the aforesaid resolution of the Municipality dated 25-11-1974. It is upon this application that, according to the Commissioners, respondent No. 3 illegally and arbitrarily passed an order staving the execution of above-mentioned resolution dated 25-11-1974. This order as aforesaid, was communicated by Annexure 5.

3. This application was admitted on 7th January, 1975 and while it was pending, the State Government issued a notice asking the Commissioners of Gaya Municipality to show cause as to why the Municipality should not be superseded. The said notice was also challenged by one of the Commissioners of the Municipality in C. W. J. C. No. 189 of 1975. The present application was heard along with C. W. J. C. No. 189 of 1975 in which a separate judgment has been passed.

4. A common counter-affidavit has been filed by respondent No. 3, Shri Ramashrav Prasad Singh in both these applications, wherein he has refuted the allegations of mala fide and has asserted that all the steps taken by him were taken objectively and upon a consideration of the facts and circumstances which came to his notice. Another common counter-affidavit was filed on behalf of respondent No. 1, the State of Bihar in which the order, contained in Annexure 5, has been supported. Respondent No. 4. Shri Kanhaiva Lal Chaurasiya has also filed a separate counter-affidavit stating, inter alia, that his resignation was conditional and the order passed by respondent No. 3 staying the illegal resolution of the Municipality was correct.

5. Mr. Basudeva Prasad, learned counsel appearing on behalf of the petitioners, has made the following submissions :-

(i) There is no power in resp