Dixit, J. - (1.)THIS is a petition for the issue of a writ under Article '226 of the Constitution of India, directed against the State, Shri, R.S. Sharma, Qua Health Minister, Laxmansingh Chouhan and Chhotelal (opponents Nos. 2, 3 & 4) praying for a declaration that the order dated 4th July 1949 of the Madhya Bharat Government revoking the acceptance of the resignation of the opponents NO. 3 & 4 as members of the Indore Municipal Council and revoking the nomination of the Petitioner, Harendra Nath Sharma as a member of the said Council is illegal and ultra vires the Indore Municipal Act, a declaration that the Petitioner is a validly nominated member of the Council, and an order requiring the opponents No. 3 & 4 to forbear from exercising the powers and functions of a councilor.
(2.)THE facts and circumstances leading up to these proceedings are of somewhat peculiar kind and may be shortly stated as follows. The Indore City Municipal Council is a cor. porate body, constituted under the Indore Municipal Act (NO. IV [4] of 1909). It consists of 94 Councilors, 22 of whom are elected and 12 are nominated by the Government. When the Council was last formed, the non -Applicants No. 3 & 4 along with others were nominated by the Government to the Council. It is alleged by the Petitioner that on or about 1st December 1948, these two nominated members tendered their resignation of the membership of the Council to the then Minister, in charge of the Municipalities, Syed Hamid Ali that the resignations were accepted on 27th April 1949 and in the casual vacancies, created by the resignation, Government in the exercise of its powers conferred under Section (3) and 10(1)(b), Indore Municipal Act, nominated the Petitioner and Shri Bhanudas Shah, an Advocate of this Court, as Councillors. Subsequently, when there was a change in the Council of Ministers of the State, the opponents No. 3 & 4 presented an application to Shri T.S. Gokbale, the succeeding Minister in charge of Municipalities, for a review of the order dated 27th April 1949 of the Government. A notice of the application for review was served on the Petitioner to show cause. The Petitioner states that on the date of the hearing of the review application Shri R.S. Sharma, Health Minister, to whom the portfolio of Municipalities had been transferred in the meantime took the view that in considering the review petition he was engaging himself in an administrative matter and as such counsel for the parties to the review application could not be heard. The Petitioner makes a grievance that he had requested Shri Bhanudas Shah who was also interested in thematter to represent him at the hearing of the review petition and on that expectation ho himself did not appear in person but that the sudden decision of the Healths Minister to disallow the parties to appear by Counsel deprived the Petitioner of an opportunity of stating his case. On 4th July 1949, the Health) Minister allowed the review petition, holding that the acceptance of the resignation of opponents Nos. 3 & 4 and the subsequent nomination of the Petitioner as void and ordered the restoration of the status quo which existed on 27th April 1949 before the acceptance of the order of the resignation. The contention of Harendranath Sharma in his affidavit in supper of the petition is that the order dated 4th July 1949 of the Madhya Bharat Government is illegal and ultra vires the Indore Municipal Act and in passing the said order the Health Minister acted in violation of the principles of natural justice and that by the said order he has been illegally and unlawfully deprived of the member -ship of the Council. The Applicant in bis petition asks this Court to issue a writ of mandamus for the relief:
(1) That the order given by opponent No. 2 on 4th July 1949 be declared illegal and ultra vires.

(2) That the opponents Nos. 3 and 4 be directed that their status as Municipal Councillors ceased to exist on 27th April 1949 and they are not entitled to the status of Councillors and they cannot work and function as Councillors.

(3) That it be declared that the Petitioner is entitled to take seat as nominated member of the Municipal Council as notified in the Government Gazette dated 7th May 1949.

(4) That the Madhya Bharat Government and the opponent No. 2 be directed to dismiss the review application of the opponents No. 3 & 4 being against the provisions of the Municipal Act and to annul their order dated 4th July 1949 and further restore the Petitioner to the office enjoyed by him up to 4th July 1949.

(3.)AT this stage it will be useful to set out Paras 3 & 5 of the reply, filed on behalf of the State by Mr. Mulak, Dey. Secretary to Government in the Ministry of Health Madhya Bharat.
The facts of the case clearly revealed to the Government that the opponents Nos. 3 & 4 had not resigned their office as Municipal Councillors.

(a) Their letter dated 1 -12 -48, read with the covering letter addressed to the City Congress Committee, on its true construction, is neither an absolute and an unequivocal resignation of their office nor was it communicated to the Government in the official curse of the business. In the Inward Register maintained by the Ministry of Health, this letter has also not been in warded.

(b) The letter does not constitute a valid resignation withis the meaning of law as it has not been addressed to the Municipal Council of which they were members.

(c) Despite their letter date 1st December 48, the opponents Nos. 3 & 4 and the other signatories continued in their office and discharged the duties as Municipal Councillors till they wore thrown out by the order of the Government, communicated to them on 20th April 1949.

(d) The opponents Nos. 3 & 4 as also the other signatories of the letter had revoked the resignation before it was communicated to the Hon'ble the then Minister. It is denied that the opponents Nos. 8 & 4 gave their resignation on or about 1st December 48, as alleged in Para 3 of the petition. It is, therefore, submitted that no casual vacancy occurred.

The opponents Nos. 3 & 4 amongst others made a petition to the Government to review the order dated 27th April 49, contending that they had not in fact resigned, having revoked their resignation before its communication to the Hon'ble the Minister and to his knowledge. At the hearing of this petition, parties present and their counsel were heard for the determination of the nature of the petition. The Petitioner had not appeared personally or through pleader. It was conceded by those who appeared that the Government were dealing with an executive matter and counsel had no right to be heard. On questions of fact, the parties present were called upon to swear affidavits and on the material produced before the Government, order dated 4th July 1949, was passed holding that the opponents Nos. 3 & 4 amongst others had not resigned their office as Municipal Councillors and that no casual vacancy arose. The nomination of the present Petitioner was thus invalid. The opponent No. 2 had satisfied himself on the materials placed before him that the resignations had been revoked before they were communicated to the Government. The effect of the order passed by Hon'ble Shree Hamidall was to throw out the bulk of the elected members from the Municipal Council, a result which violated the spirit of the Municipal Act.

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