J.K. Tandon, J. - (1.) Sri Krishna Chandra Gupta the petitioner was elected President of the Municipal Board, Sitapur, on the 2nd of June, 1959. In June, 1960 certain members of the Board, who felt dissatisfied from him, moved the District Magistrate's, Sitapur, under Section 87-A of the U. P. Municipalities Act for the consideration and passing of a motion of non-confidence against him. Under sub-Sec. (3) of the said section the District Magistrate's has to convene a meeting for the consideration of the motion for which the date and time are appointed by him; the place where the meeting is held is prescribed in the sub-section itself, being the office of the Board. Accordingly the District Magistrate's appointed the 7th of July, 1960, for the meeting to take place. There is no dispute that the usual procedure prescribed therefor under sub-Sec. (3) of Section 87-A was gone into.
(2.) Before the meeting could take place on the appointed date one of the members of the Board moved a writ petition in this Court questioning the legality of the notice which the District Magistrate's issued for the said meeting to Sri Gupta. The Board is constituted of the President and twenty-five members. In issuing the notice to Sri Gupta the District Magistrate's assumed that as an ex-offico member he too was entitled to the notice. The member who made the above writ petition disputed this proposition, as according to him the President though an ex-officio member was not entitled to be taken account of in determining the total membership of the Board. The petition was presented on the 6th of July, 1960. The meeting itself was to take place the following day. In the petition, therefore, the petitioner made a prayer for staying the holding of the meeting on the 7th of July, 1960. An interim order of stay was granted by this Court and as a result the meeting did not take place as convened by the District Magistrate's. Later the stay order was contested by some of the parties affected and on their request and after notice to the petitioner of that petition the same was heard and decided on the 16th of July, 1960. While dismissing the writ petition the following further order was passed: "The stay order dated the 6th July, 1960, is discharged. "The learned Standing Council and also Sri J. S. Trevedi who has put in appearance in the case-on behalf of certain members of the Board requested that since the meeting of the Board scheduled for the 7th July, 1960, had been withheld under the orders of the Court might give directions to the respondents concerned to proceed with the holding of the meeting. Sri Hargovind Dayal does not see eye to eye with these gentlemen and according to him no such direction is called for. Both the District Magistrate's and the Judicial Officer who was appointed to preside at the meeting are before the Court. Ordinarily should not have acceded to the request of fixing a date myself, but considering the fact that the appointed meeting was withheld owing to the orders of this Court which have since been vacated think that, under the circumstances and having regard to the equities also of the matter, a date should be fixed by me accordingly fix 22nd of July, 1960, as the date of the meeting and direct respondents nos. 2 and 4 to take proper action in accordance with law for the holding of the said meeting on this date."
(3.) The second and the fourth respondents referred to in the above order were the District Magistrate's of Sitapur and Sri Prag Narain, Movable Civil and Sessions Judge, Sitapur, respectively. The latter had been impleaded in the array of respondents as he happened to be the person nominated in accordance with sub-Sec. (4) of Section 87-A to preside at the meeting convened for the 7th of July 1960. In pursuance of the direction given by this Court the meeting of the Board, took place on the 22nd of July, 1960, at 11A.M. in the office of the Board. The motion of non-confidence for which the meeting had been convened was considered in this meeting and was adopted. Of the eighteen members who. were present at the meeting 17 voted in favour and one Sri Amir All remained neutral. Once the motion had been adopted the same was communicated by the Presiding Officer, as he was required also, to the District Magistrate's with a copy of the proceedings. It is not necessary to state intermediate details but one fact is relevant. The District Magistrate's having received the proceedings he wanted to proceed further in accordance with law. There upon on the 24th of July, 1960, the petitioner presented the instant petition asking a writ of certiorari to quash the proceedings of the meeting held on the 22nd of July, 1960 and further a writ in the nature mandamus commanding the respondents not to take any action thereon. * * * * * * * The grounds relied upon by the petitioner may now be stated: They are:- (1) Section 87-A (3) of the U. P. Municipalities Act authorised the District Magistrate's alone to fix the date and time etc. for the consideration of the motion of non-confidence and this Court while fixing the date itself by its order dated the 15th July, 1960, exceeded its powers, and any meeting held in pursuance of it is illegal the resolution adopted by it is similarly illegal. (2) Even respondent no. 1 Sri Prayag Narain was unable under the law to fix the 22nd of July, 1960, for the taking place of the meeting as no meeting took place on the 6th of July, 1960, so that the power to adjourn the meeting which alone belonged to the Presiding Officer had never accrued in his favour. (3) Incidentally the objection also is that Sri Prayag Narain did not exercise his individual discretion in fixing the adjourned date but simply carried out the order of this Court. His order fixing the 22nd of July, 1960, could not, therefore, be said to be an order passed under sub-Sec. (5) of Section 87-A of the Act. (4) The District Magistrate's alone was competent to give notice of the meeting but the same was issued by the officer-in-charge. (5) Lastly, the notice fixing the 22nd of July, 1960, as the date for the meeting, had not been published in any newspaper; this defect or deficiency invalidated the notice.;