- (1.) THESE three applications can conveniently be dealt with in one order. The three applicants were members of the Municipal Board of Kasganj in the district of Etah. On or about the 25th march, 1949, each of them was served with a notice requiring him, under Sub-section (4) of S, 40 of the Uttar Pradesh Municipalities Act, 191. 6, to furnish an explanation of certain act specified in the notice which it was alleged constituted a flagrant abuse of his position as a member of the Board. Each of them submitted an explanation, but by an order dated the 24th nov-ember, 1949, they were informed that the Governor had come to the conclusion that their continuance as members of the Municipal Board was detrimental to the public interest and that he had ordered their removal forthwith from membership of the Kasganj Municipal Board. The applicants made representations to the Government against the order of removal, but their representations were rejected on the 14th December, 1950, and on the 24th February, 1951, they filed the present applications in which, -- in the lax way in which such applications are sometimes presented to this Court, -- the applicants ask for "a writ, order or direction in the nature of 'certiorari' or prohibition or 'mandamus' or any order" that the order of removal may be set aside. Learned counsel has however stated that the relief which the applicants in fact seek is the issue of a writ in the nature of 'certiorari' and the quashing of the order of the 24th November, 1949. The application of Mohammad Baksh is accompanied by an affidavit of considerable length which contains a good deal of irrelevant matter. Each of the other two applications is accompanied by a very short affidavit in which the applicant states that he relies upon the facts set forth in the affidavit of Mohammad Baksh. This is an unsatisfactory practice as it is likely to result in one or more of the deponents deposing to matters not within his or their personal knowledge; the better course is for a joint affidavit to be filed.
(2.) SUB-SECTIONS (3) and (4) of Section 40 of the Uttar Pradesh Municipalities Act, 1916, are in the following terms: " (3) The Provincial Government may remove from the board a member who in its opinion has so flagrantly abused in any manner his position as a member of the board as to render his continuance as a member detrimental to the public interest: (4) Provided that when either the Provincial Government or the prescribed Authority, as the case may be, proposes to take action under the foregoing provisos of this section, an opportunity of explanation shall be given to the member concerned, and when such action is taken, the reasons therefor shall be placed on record. "
(3.) IT is the applicants' case that the Prorincial Government had no jurisdiction to make the order of which they complain because they were not afforded an adequate "opportunity of explanation" which is a condition precedent to the exercise of the power of removal; it is also their case that the order in question is an unreasonable and arbitrary order. They concede that they have a remedy by way of suit against the Government, --and indeed, if the allegations be correct this is not in doubt -- and counsel for the State contends that in these circumstances the Court will not issue a writ in the nature of 'certiorari'. He has further argued that the order which is now challenged is an administrative order, that the provisions of Sub-section (4) were complied with and that the Court has no power under Article 226 to quash an order made prior to the date upon which the Constitution came into force.;