JUDGMENT

Satish Chandra, J. - This petition under Article 226 of the Constitution pray that the order passed by the Commissioner of Merrut on 6th October, 1967, be quashed and further the Civil Judge, Roorkee, be directed to prepare a fresh minute of the meeting of the Municipal Board in relation to the resolution of no confidence tabled against the President.

2. The petitioner was elected member of the Municipal Board, Hardwar, in 1961. , The Municipal Board consists of 21 members including the President. On 4th September, 1967, the petitioner along with respondent No. 7 presented to the District Magistrate a notice for convening a meeting of the Board to consider the motion of no confidence against the President of the Board. The District Magistrate thereupon convened the meeting of the Board for 6th October, 1967. Sri S.D.N. Sahi. Civil Judge, Roorkee, was nominated to preside over the meeting. After the commencement of the meeting the President of the Board, respondent No. 5. placed before the ' Presiding Officer a copy of an order of the , Commissioner dated 6th October, 1967, suspending the petitioner. The order purported to be under Section 40 (6) of the U.P. Municipalities Act. Thereupon, the Presiding Officer ruled that the petitioner was not entitled to participate in the proceedings of the meeting or vote at the motion of no confidence. The petitioner persisted. He made two applications protesting that he was being unlawfully prevented from participating and voting and further stating that he had sponsored the no confidence motion and he was in favour of it. The Presiding Officer was requested that his vote in favour of the no confidence motion be recorded. The Presiding Officer persisted in his ruling and required the petitioner to leave the meeting. Thereupon, the petitioner left. The motion was put to vote. Ten members, other than the petitioner, voted in favour of the motion. Since they did not constitute more than half of the total strength of the Board, the Presiding Officer declared that the motion' had been lost.

3. For the petitioner the order of the Commissioner was challenged as ultra vires the powers conferred by Section 40 of the U.P. Municipalities Act. On 6th October, 1967. the Commissioner passed two separate Orders. In one he stated: -

"I have gone through the papers on record. A perusal of the complaint together with the report of the audit and the report of the President shows that a prima facie case of flagrant abuse of power is made out against Sri Shyam Khewaria, Member Municipal Board, Hardwar.

I am convinced from the papers on record that the member has misused his powers by getting his son-in-law appointed as lecturer in the Municipal College, 1, therefore order that under Section 40 (6) of the U.P. Municipalities Act, 1916 Shri Hari Shiam Khewaria, member Municipal Board, Hardwar is placed under suspension for a period of one month from the date of this order.

A show cause notice should issue calling upon the member to explain why he should not be removed from the membership of the Board. He should submit his explanation within a period of one month from the receipt of this order."

The first paragraph mentioned that there was a prima facie case of flagrant abuse of power against the petitioner. This ground is mentioned in sub-sec. (3) of Section 40. On that ground a person could be removed, and, under sub-sec. (5) he could also be placed under suspension pending enquiry into the charges against him. Sub-sec. (6) of Section 40 on its terms applies only to the grounds referred to in sub-sec. (1) . It is not attracted to the grounds mentioned in sub-sec. (3) . Hence, _on the ground of flagrant abuse of power no order under sub-sec. 4(3) could be passed at all. Sub-sec. (6) contemplates a final order of punishment of suspension in lieu of removal. The second paragraph of the above order expressly states that the petitioner was suspended for one month under sub-sec. (6) . The Commissioner would have