O. H. MOOTHAM, CJ.

( 1 ) THIS is an appeal from an order of a learned Judge dated 6-4-1956, dismissing a petition under article 226 of the Constitution.

( 2 ) THE appellant was elected a member of the Municipal Board of Ghaziabad in October, 1958. In April, 1954, the State Government started proceedings under Section 40 Sub-sections (3) and (4) of the U. P. Municipalities Act, 1916, for the removal of the appellant from the Board. Those sub-sections read thus :

" (3) Tha State Government may remove from the board a member who in its opinion has so flagrantly abused in any manner his position as a member of the Board as to render his continuance as a member detrimental to the public interest:

(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 therefor shall be placed on record. "

The charge made against the appellant was"that he contravened the provisions of Section 178 of the U. P. Municipalities Act, 1916, and the Building Bye-Laws made thereunder when soon after his election as member of the ghaziabad Municipal Board he restarted on November 28, 1953, the unauthorised constructions of the building on plot No. 827 of land outside Sihani Gate, which land had been acquired by the government for the Ghaziabad Municipal Board for their development schemes. Being in full knowledge of these facts he has, by his said action, so flagrantly abused his position as a member of the Board as to render his continuance as member detrimental to public interest. "

The appellant submitted an explanation, but this* was found unsatisfactory, and by an order dated 15-7-1955, ho was removed from the Board; and on 9-9-1955, he filed the petition against the rejection of which this appeal has been filed.

( 3 ) SHORTLY after the petition had been filed, on 10-10-1955, a bye-election was held to fill the casual vacancy caused by the removal of the appellant, and one Lajpat Rai was declared duly elected. The appellant thereafter obtained an order from this Court making Lajpat Rai a party to the petition.

( 4 ) THE learned Judge held that Section 40 (3) of the Act clothed the State Government with authority to determine, on the basis of its own opinion, whether the member had abused his position as such as well as to decide whether such abuse was so flagrant as to render his continuance as a member detrimental to the public interest; and that although in his opinion the conduct attributed to the appellant did not amount to an abuse of his posi-tion as a member the decision of the State Government was one which, in the absence of bad faith (which he held not to be established) could not be questioned in any Court. Tho learned Judge was also of opinion that the petition failed on other grounds namely (a) that as Lajpat Rai had been elected during the pendency of the petition he could only be removed by an election petition under Section 19 of the Municipalities Act and consequently the appellant could obtain no effective relief by the present petition and (b) the appellant had an alternative remedy by way of suit. He accordingly dismissed the petition, but as in his opinion the order of removal was wrong he made no order as to costs.

( 5 ) THE argument for the appellant in this Court is that the learned Judge misdirected himself as to the meaning and effect of Section 40 (3), that upon a true construction of that sub-section the fact that the member had acted in his capacity as ia member is a condition precedent to the exercise of jurisdiction by the State Government and that the existence of this, condition precedent is a justiciable matter. It is further contended that the learned Judge erred in holding that Lajpat Rais elec-tion could not be set aside save by the process of an election petition, or that the appellant had an adeq

Click Here to Read the rest of this document