S.K.Dhaon, J. - (1.) THIS petition, at the instance of seven members of a certain Town Area Committee (hereinafter referred to as the Committee), stems from the election of Sri Suresh Chandra Agarwal, the Respondent No. 5 (hereinafter referred to as Sri as the Vice -Chairman of the Committee. The election was held on 14th April, 1991. A counter affidavit has been filed by Sri Agarwal. A rejoinder affidavit too has been filed. The petition has not been formally admitted as yet. However, with the consent of the counsel of the parties we heard it with a view to dispose it of finally and we are doing so.
(2.) IN November, 1988, an election of the committee took place. Nine members were elected. The elected members included the petitioners and Sri Agarwal. One Sri Ramesh Chandra Agarwal, the elder brother of Sri Agarwal, was elected as the Chairman of the Committee. A motion of non -confidence in the Chairman of the committee was tabled and the District Magistrate fixed 9th April, 1990 as the date of the meeting of the committee in which the said motion was to be considered. On 5th April, 1990, the Chairman (elder brother of Sri Agarwal) obtained an interim order from this court in writ petition No. 7382 of 1990 to the effect that the motion of non -confidence may be put to vote but the result thereof shall not be declared. The motion was put to vote on 9th April, 1990. On 29th April, 1991, this court, after perusing the report of the Presiding Officer and after recording the statement of the said Officer, vacated the interim order dated 5th April, 1990, in the said petition. This court also directed the District Magistrate to take appropriate action to give effect to the expression of non -confidence in the Chairman by the majority of the members of the committee. Section 5 of the Town Areas Act, 1914 says that a Committee shall be established for each Town Area. The Committee is to consist of: (b) the elected members who shall not be less than nine and be not more than fifteen, as the State Government may, by notification in the Official Gazette, specify. Section 8 -A(2) of the said Act provides: - - The Chairman shall be elected by the electors of the town area at an election held simultaneously with the general election of members of the committee.
(3.) IN the case of a vacancy, a fresh Chairman has to be similarly elected by the electors. It will be seen that the Chairman is as much elected as are the other members. Under Section 5 the Chairman is also a constituent part of the committee just as elected members are. He would also be a member of the Committee. Thus on 14th April, 1991, the total number of the members of the Committee was 12 and not 11, as stated at the Bar by Sri R.H. Zaidi, learned counsel representing Sri Agarwal, Annexure 3 to the counter -affidavit purports to be a copy of the proceedings of the meeting of the Committee held on 14th April, 1991, wherein Sri Agarwal was elected as the Vice -Chairman. This shows that in all 5 members are present including Sri Agarwal and the Chairman (his elder brother). Annexure 7 to the counter -affidavit purports to be a report of the Tehsildar concerned. In this report it is recited that on 14th April, 1991, 5 members of the Committee, including the Chairman elected Sri Agarwal as Vice -Chairman.;