R.A. Sharma, J. - (1.) PETITIONER , who is chairman, Town Area Committee Hasayan district Aligarh, has filed this writ petition challenging the notice dated 8 -5 -1991 (Annexure -1 to the writ petition) whereby 29 -5 -1991 was fixed as the date of the meeting of the Town Area Committee for consideration of the motion of the no -confidence, against him. The meeting of 29 -5 -1991 was adjourned and was ultimately held on 20 -6 -1991. It is admitted to the learned Counsel for both the parties that in the aforesaid meeting six members participated and all of them have voted in support of the motion of no confidence against the Petitioner, but in view of the interim order passed by this Court resolution passed in the aforesaid meeting could not be implemented, with the result that the Petitioner is still working as chairman of the Town Area Committee.
(2.) THE Respondents have filed counter -affidavit and the Petitioner has filed rejoinder -affidavit in reply there to We have heard the learned Counsel for the parties. The learned Counsel for the Petitioner has raised three submissions, namely, (i) the meeting of the Town Area Committee for consideration of the motion of no -confidence against the Petitioner, having been fixed after thirty five days from the date of the receipt of the notice of motion by the District Magistrate, the motion has lapsed and no action can be taken on the basis of the resolution passed in such a meeting, (ii) the District Magistrate has not issued the notice of the meeting, but Addl. District Magistrate had issued such notices, and (iii) the notice of motion of no -confidence was signed by six members only who were less than one half of the total number of members of Town Area Committee, and no action could have been taken on such a notice.
(3.) THE Town Area Act does not provide for motion of no - -confidence against the chairman of a Town Area Committee, but Section 87 -A of the U.P. Municipalities Act (hereinafter referred to as the Act) has been extended to the Town Area, by the Government of Uttar Pradesh on account of which the motion of no -confidence against the chairman of the Town Area Committee can be moved, considered and passed by the Town Area Committee in accordance with Section 87 -A of the Act. Sub -section (1) to (6) of Section 87 -A, being relevant, are reproduced below: (1) Subject to the provisions of this Section, a motion expressing no -confidence in the President shall be made only in accordance with the procedure laid down below. (2) Written notice of intention to make a motion of no -confidence in its president signed by such number of members of the Board as constitute no less than (one half) of the total number of members of the Board together with a copy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the notice to the District Magistrate. (3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall not be earlier than thirty and not later than thirty -five days from the date on which the notice under Sub -section (2) was delivered to him. He shall sent by registered post not less than seven clear -days before the date of the meeting, a notice of such meeting and of the date and time appointed therefore to every member of the board at his place of residence and shall at the same time cause such notice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the notice. (4) The District Magistrate shall arrange with the District Judge for a stipendiary civil judicial officer to preside at the meeting convened under this Section, and no other person shall preside thereat. If within half an hour from the time appointed for the meeting, the judicial officer is not present to preside at the meeting, the meeting shall, stand adjourned to the date and the time to be appointed and notified to the members by that officer under Sub -section (5). (5) If the judicial officer is unable to preside at the meeting, he may, after recording his reasons adjourn the meeting to such other date and time as he may appoint, but not later than fifteen days from the date appointed for the meeting under Sub -section (3). He shall without delay communicate in writing to the District Magistrate the adjournment of the meeting. It shall not be necessary to send notice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate shall give notice of the date and the time of the adjourned meeting by publication in the manner provided in Sub -section (3). (6) Save as provided in Sub -sections (4) and (5) a meeting convened for the purpose of considering a motion under this Section shall not for any reason be adjourned. Sub -section (3) of this Section required the District Magistrate to convene a meeting on the date and at the time appointed by him which shall not be earlier than thirty and not later than thirty -five days from the date on which notice under Sub -section (2) was delivered to him. A Full Bench of this Court in the case of Mahesh Chandra v. Tara Chand : AIR 1958 All. 374, has laid down that those provisions of Section 87 -A of the Act which deal with and relate to the calling of the meeting and actual holding of the meeting as also the conduct of the meeting itself, are mandatory, compliance of which is imperative for passing the motion of no confidence validly against the president of the Municipal Board. A Division Bench of this Court in the case of Sohan Krishna Dabral v. District Magistrate Pauri Garhwal, ILR 1969 (All.)185 has however, taken the view that observation of the aforesaid Full Bench relating to the convening and lading of the meeting etc. were merely orbital dicta and on that basis motion of no -confidence passed against the president of Municipal Board in a meeting held after thirty five days from the date of receipt of the notice by the District Magistrate was upheld on the ground that there has been substantial compliance of the provisions of Section 87 -A. The question as to whether the provisions of Section 87 -A of the Act are mandatory again came up for consideration before a Full Bench of Five -Hon'ble Judges of this Court in the case of Gyan Singh v. The District Magistrate Bijnor : AIR 1975 All. 315. This Full Bench has laid down that the first part of Sub - Section (3) of Section 87 -A, which deals with the convening of the meeting of the Municipal Board and sending of the notice of the meeting is mandatory. However, later part of Sub -section (3) of Section 87 -A which relates to the sending of the notices to the members of the Municipal Board by registered post was held to be directory. The relevant extract from the decision of this Full Bench judgment, as contained in para 8, is reproduced below: A careful analysis of Sub -section (3) would make it clear that the first part which requires the District Magistrate to convene meeting of the Board for considering the motion of no -confidence against the President is mandatory. The District Magistrate is required to perform a public duty in convening a meeting of the Board for consideration of the motion at the office of the Board on the date and time as fixed by him, he has no choice in the matter. He has to convene a meeting on a date within 30 and 35 days from the date of presentation of the motion to him. The District Magistrate is further enjoined to perform a public duty of sending notice of the meeting to the members; this again is a mandatory requirement of law which must be strictly complied with. In view of the decision of the aforesaid Full Bench the provisions of Sub -section (3) of Section 87 -A so far as they relate to the convening of the meeting on the date which shall not be earlier than thirty and not later than thirty five days from the date on which the notice was delivered to the District Magistrate, are mandatory. This provision being mandatory it is incumbent on the District Magistrate to convene the meeting on any date between thirty and thirty -five days. If a meeting is convened by the District Magistrate after thirty five days from the date of receipt of notice, such meeting will be illegal and the resolution passed therein cannot be said to have been validly passed. Legal effect of the provision of Sub -section (3) is that if the meeting is not convened on a date between 30 and 35 days from the date of the receipt of the notice by the District Magistrate, the notice of motion of no -confidence will lapse and no action can be taken on it.;