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Allahbad High Court
S.N.DWIVEDI,R.S.PATHAK
Abdul Latif Nomani - Appellant
Versus
Commissioner Gorakhpur - Respondent
Decided On : 08/19/1966
MUNICIPALITIES - Removal of members - Order of removal - Validity - Conditions precedent - Opportunity of explanation - Notice - Service - Nullity of order - Quashing of minute declaring want of quorum - De facto vacancies - Doctrine of de facto title - Applicability - Remedy - Suit for damages or writ petition.
Fact of the Case:
Two members of a Municipal Board were removed from membership by the Commissioner under Section 40(1)(a) of the U.P. Municipalities Act, 1916, for absence from meetings without obtaining sanction. They challenged the orders of removal and the subsequent declaration by a judicial officer that a meeting for consideration of a motion of non-confidence against the President could not be held for want of a quorum due to their removal.
Finding of the Court:
1. The orders of removal did not satisfy the conditions contained in Section 40(1)(a) of the Act and were, therefore, invalid. 2. The notices issued under Section 40(4) did not give the members an opportunity of explanation as required by the provision. 3. The orders of removal were null and void as they were made without jurisdiction and in violation of the principles of natural justice. 4. Sanaullah Sardar and Mohammad Yusuf must be considered as continuing members of the Board and entitled to participate in the meeting for consideration of the motion of non-confidence. 5. The declaration of the judicial officer that the meeting could not be held for want of a quorum was liable to be quashed. 6. The doctrine of de facto title embodied in Section 113(2) of the Act does not apply to vacancies created by invalid orders of removal under Section 40(1)(a). 7. The remedy of a suit for damages was not appropriate in the circumstances, and the members were entitled to relief under Article 226 of the Constitution.
Issues: 1. Whether the orders of removal of the two members were valid. 2. Whether the judicial officer was justified in declaring that the meeting could not be held for want of a quorum. 3. Whether the doctrine of de facto title applies to vacancies created by invalid orders of removal. 4. Whether the members' remedy lay in a suit for damages or a writ petition under Article 226.
Ratio Decidendi: 1. The orders of removal were invalid as they did not satisfy the conditions precedent under Section 40(1)(a) and violated the mandatory requirement of providing an opportunity of explanation under Section 40(4) of the Act. 2. The judicial officer's declaration was unsustainable as Sanaullah Sardar and Mohammad Yusuf were continuing members of the Board and entitled to participate in the meeting. 3. The doctrine of de facto title under Section 113(2) of the Act is inapplicable to vacancies arising from invalid orders of removal under Section 40(1)(a). 4. The members were entitled to relief under Article 226 as the validity of the orders of removal was crucial to the fate of the proceeding under Section 87-A and a suit for damages would be an inadequate remedy.
Final Decision: The special appeal filed by the President of the Board challenging the quashing of the orders of removal and the direction to reconvene the meeting was dismissed with costs.
PATHAK, J. :- The Municipal Board of Maunath Bhanjan in the district of Azamgarh consists of the President and twenty elected members. Written notice of the, intention to make a motion of non-confidence against the appellant Abdul Latif Nomani. President of the Board, was presented to the District Magistrate, Azamgarh. on May 30, 1966, and the District Magistrate convened a meeting on July 3, 1966, for consideration of the motion. Notice of the meeting was despatched to the members of the Board by registered post on May 31, 1966. It appears that on June 10, 1966 the Commissioner of the Gorakhpur Division issued a notice In Sanaullah Sardar and Mohammad Yusuf two members of the Board, purporting to charge them with absence from four consecutive meetings of the Board on different dates without obtaining the sanction of 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 he 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 judicial officer declared that the meeting could not be held for want of a quorum and recorded a minute to that effect.
2. Sanaullah Sardar filed a petition under Article 226 of the Constitution praying for the quashing of the order of the Commissioner removing him from membership of the Board and of the minute of the judicial officer that the meeting for consideration of the motion of non-confidence could not be held for want of a quorum. He also prayed that the District Magistrate and the judicial officer be directed to hold a meeting of the Board for consideration of the motion of non-confidence on the basis of the notice of intention already delivered.
3. A similar petition was moved by Mohammad Yusuf praying for like relief.
4. Both the petitions were disposed of together by G.C. Mathur, J. He rejected the plea of the petitioners that the order removing them from membership of the Board was made mala fide but be held that the order of removal did not satisfy the provisions of S. 40(1)(a) of the U.P. Municipalities Act and was therefore, invalid. En passant be observed that Sanaullah Sardar and Mohammad Yusuf had not been given an opportunity of explanation as contemplated by S. 40(4). He quashed, the orders of removal made by the Commissioner on July 1, 1966. Then pointing out that but for the invalid orders of removal the petitioners would have participated in the meeting convened for the consideration of the motion of non-confidence and that there would then have been a quorum for holding the meeting he directed the District Magistrate to reconvene a meeting of the Board for consideration of the motion on the basis of the notice of intention which had already been received by him on May 30, 1966.
5. Abdul Latif Nomani has filed Special Appeal No. 611 of 1966 against the order allowing the writ petition filed by Sanaullah Sardar and Special Appeal No. 512 of 1966 against the order allowing the writ petition filed by Mohammad Yusuf. The Co
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