B.D. Gupta, J. - (1.) This is a special appeal by one Sharafat Ullah Khan under Ch. VIII, R. 5 of Rules of Court against an order of a learned single Judge dismissing his petition under Article 226 of the Constitution of India. The facts leading to the petition may now be briefly summarised.
(2.) One Sri Wasi Ullah Khan had been elected the President of the Municipal Board of Tilhar in the district of Shahjahanpur. As a result of an election petition the election of Wasi Ullah Khan was declared void with the result that a casual vacancy in the office of the President took place. The appellant was the Senior Vice-President of the Municipal Board at that time, and began to act as the President of the Board in that casual vacancy. A bye-election for the office of the President was held and, on the 8th of October 1960, the appellant was declared elected. Thereafter, on the 13th of October 1961, a notice of a motion of non-confidence in the appellant, accompanied with a copy of the motion, which had been signed by 12 of the members of the Board, was presented to the District Magistrate Shahjahanpur by six of the signatories to the motion of non-confidence. The District Magistrate thereupon convened a meeting of the Board to be held on the 15th of November 1961 for consideration of the aforesaid motion. Before the aforesaid meeting could take place the appellant filed the petition giving rise to this appeal and an interim order was passed by this Court whereby, though the holding of the meeting on the 15th of November 1961 was not prohibited, it was ordered that in case the non-confidence motion succeeded at the meeting the same shall neither be given effect to nor communicated to the petitioner by the Civil Judicial Officer who may preside at the meeting.
(3.) The case set forward by the appellant in his petition was that, after he had been declared elected as President on the 8th of October 1960, he submitted a written resignation in respect of the office of Senior Vice-President which he held at the time, and that this resignation was accepted by the Board on the 29th of October 1960 whereafter, on the same day, he took oath of the office of the President as required by the rule framed by the local Government in exercise of its powers under Section 296 of the U.P. Municipalities Act, hereinafter referred as the "Act." The legality of the motion of non-confidence was challenged, in the main, on two grounds. The first was founded on the assertion that the appellant must be deemed to have assumed office of the President on the 29th of October 1960 on which date he took oath of office as President, and that the notice of the motion of non-confidence having been received by the District Magistrate on the 13th of October 1961, i.e. within 12 months of the 29th of October 1960, was in violation of Cl (14) of Sec. 87-A of the Act. The second ground was that the notice of the motion of non-confidence having been delivered to the District Magistrate by six of the signatories, there was no proper presentation inasmuch as Cl. (2) of Sec. 87-A of the Act required delivery of such notice by two only of the signatories. The prayer in the petition was for issue of a writ of certiorari quashing the notices of the non-confidence motion as also the entire proceedings for consideration thereof in pursuance of the same. Another ground which was raised in the petition and urged before the learned single Judge and related to publication of the notice of non-confidence in terms of Cl. (3) of Sec. 87-A of the Act was decided by the learned single Judge against the appellant, but the decision of the learned single Judge on that ground has not been challenged before us in the course of the hearing of this appeal. The petition to this court was contested and, so far as the facts set forward in the petition were concerned, the assertions therein that the appellant submitted his resignation from the office of Senior Vice-President and that it was accepted by the Board on the 29th of October 1960 whereafter, on the same date, the appellant took oath of the office of President, were denied. On the view that writ proceedings were not a proper forum for going into controversial questions of fact the learned single Judge, without entering into any discussion about the merits, and in our opinion rightly, proceeded, however, to decide the petition assuming in favour of the appellant that the aforesaid allegations were correct. On the first question the learned single Judge relied on the provisions contained in Section 46 of the Act and took the view that the appellant must be deemed to have assumed office within the meaning of that expression in Cl. (14) of Sec. 87-A of the Act on the 8th of October 1960 on which date the appellant had been declared elected to the office of the President. He consequently found that the notice of the motion of non-confidence was delivered to the District Magistrate beyond a period of 12 months from the assumption of the office of President by the appellant and that, therefore, there was no violation of any prohibition contained in Cl. (14) of Sec. 87-A of the Act. On the second question the learned single Judge took the view that there was no material on the record to show the number of members who "delivered" the notice of non-confidence to the District Magistrate on the 13th of October 1961, that all that appeared from the material on the record was that at the time of the delivery of the aforesaid notice six of the signatories were present, and that, therefore, it could not be said with any certainty that a breach of Cl. (2) of Sec. 87-A of the Act requiring delivery of the notice by two of the signatories had been committed. In the result the learned single Judge dismissed the petition. Hence this appeal. We have heard learned counsel at considerable length and we see no reason to differ from the view taken by the learned single Judge. We now proceed to give our reasons.;