SHUKLA, J. :- This case has come to us on a reference made by the Bench which admitted the writ petition and expressed the opinion that the Division Bench decision in Bhaiya Lal v. P. N. Tewari, 1970 All LJ 36 required reconsideration.

2. The admitted facts of the case are that the Town Area Committee of Gola Bazar (hereinafter called the Committee) district Gorakhpur is constituted by nine members and one Chairman. Thus, the total number of the members of the Committee is ten Out of the said members Noor Mohammad died in 1965 and a vacancy was declared which still remains unfilled. On 19-12-1969 five members of the Committee gave notice of their intention to move a motion of non-confidence against its Chairman (petitioner). The District Magistrate by his order dated 31-12-1969 fixed 19-1-1970 as the date for consideration of the motion of non-confidence. On the date fixed five members of the Committee were present in the meeting. The Munsiff, Bansgaon, district Gorakhpur, presided over the meeting. All the five members of the Committee who were present voted in favour of the motion of non-confidence and the Presiding Officer, relying on the ruling reported in 1970 All LJ 36, declared that the motion of non-confidence was passed. The Minutes of the meeting recorded the result of the voting thus :-

"Since all the five members namely Sri Hanuman Pd., Sri Ram Bachha Chand, Sri Raj Narain Chand, Sri Nav Ratan Lal and Sri Parag have voted in favour of the motion and there are only eight members and the Chairman, in total, the motion is passed by a majority and it stands carried."

3. The petitioner filed this writ petition praying for a writ in the nature of certiorari quashing the proceedings of the motion of non-confidence dated 19-1-1970 (Annexure 5 to the writ petition) and for a writ of mandamus directing the respondents Nos. 1 and 3 namely the District Magistrate, Gorakhpur, and the State of Uttar Pradesh, not to interfere with the petitioner's functioning as Chairman of the Town Area Committee, Gola Bazar. The writ was contested by the opposite parties Nos. 1 and 3 and a counter affidavit by the Town Area Clerk of Collectorate, Gorakhpur, was filed. It was stated in the counter affidavit that the Presiding Officer had rightly declared the motion of non-confidence as carried because it had been passed by five members, which constituted the majority of more than half of the total number of the members of the Board.

4. The contention of the petitioner, in short, is that the expression "total number of members of the Committee" used in Section 87-A (12) of the U. P. Municipalities Act as applied to the Town Areas means the total strength of the Town Area Committee and not the present strength thereof. In the present case the total number of members of the Town Area Committee was ten, therefore at least six members were required for carrying the motion of non-confidence against the petitioner. Since only five members had voted in favour of the motion, according to the petitioner, it should have been declared to have failed. It is not disputed that as provided by Section 5 of the U. P. Town Areas Act, 1914, a Town Area Committee consists of the Chairman and the elected members who shall not be less than nine and more than fifteen as the State Goverment may by notification in the official Gazette specify. It is also not disputed that the provisions of Section 87-A of the U. P. Municipalities Act were extended to the Town Areas under Section 88 of the U. P. Town Areas Act.

5. Section 87-A of the U. P. Municipalities Act as applied to the U. P. Town Areas reads as under :-

"Motion of non-confidence against Chairman. Section 87-A : (1) Subject to the provision of this Section a motion expressing non-confidence in the Chairman shall be made only in accordance with the procedure laid down below :

(2) Written notice of intention to make a motion of non-confidence in its chairman signed by such number of members of the committee as const