- (1.) The petitioner was appointed Executive Officer, Municipal Board, Hapur, in December 1931. In October 1953 the new Board was elected and Sri Tara Chand Modi, opposite party No. 3, was elected President of the Board. On 7th November a vote of no confidence was passed against him. Under the orders of this Court the operation of the order was stayed as the proceedings of the meeting were challenged by means of a writ petition by Sri Tara Chand Modi. On 19-2-1957 a letter was sent by the Addl. Dist. Magistrate, Meerut, to the Petitioner that the President should be deemed to be incapacitated from functioning as a President and Under Section 47A of the Municipalities Act the Vice President should look after the affairs of the Board. The Senior Vice President, Sri Abdul Rashid started functioning though Sri Tara Chand Modi, opposite party No. 3, continued to assert his right to function as as the President of the Board. On 24-3-1957 Sri Abdul Rashid, the Senior Vice President resigned from his office. The State Government by letter dated 27-4-1957 in the exercise of its powers Under Section 47A(2) of the Municipalities Act removed Sri Tara Chand Modi from the office of the President of the Municipal Board with effect from 29-4-1957. On 3-5-1957 Sri Tara Chand Modi filed a writ petition challenging the validity of the order of the State Government removing him from the office of the President. It should also be pointed out that the petition filed by Sri Tara Chand Modi challenging the validity of the resolution of 7-11-1956 was ultimately dismissed by this Court and the order of Hon'ble Single Judge was confirmed in Special Appeal by a Bench. The prayer for the interim relief in the second writ petition filed by Sri Tara Chand Modi challenging the order of the removal by the State Government was rejected on 8-5-1957. On 4-5-1957 Shri Mahesh Chandra, opposite party No. 4, was, however, elected Vice President by the Board by a Special resolution and according to the Petitioner, provisions of Sub-sections (2) and (3) of S. 54A were not complied with in the election of Shri Mahesh Chandra. On 24-5-1957 an application was made by Shri Tara Chand Modi for special leave to appeal to the Supreme Court against the order of this Court refusing interim relief to him. On 3-6-1957 the application for interim relief in the application for special leave was heard and operation of the removal order of the State Government dated 27-4-1957 was stayed. After the stay order had been granted by the Supreme Court Shri Tara Chand Modi asserted his right to function as president of the Board. On 9-6-57 the Petitioner applied for a week's leave with effect from 10-6-57 which was granted. The Medical Officer of Health was asked to officiate as Executive Officer during his absence. On 11-6-57 Shri Mahesh Chandra, however, cancelled the order regarding the Medical Officer of Health to Officiate in the absence of the Petitioner and directed the Head Clerk" of the Board, Shri Rameshwar Prasad Goel who, according to the Petitioner, was related to the opposite party No. 4, to officiate in the absence of the Petitioner. On a representation made by the Health Officer the District Magistrate directed the Vice Chairman to remove the Head Clerk and entrust the work of the Executive Officer to some other responsible officer. Thereupon opposite party No. 4 asked the Tax Superintendent, suspended by Shri Tara Chand Modi, to officiate in place of the Petitioner. On 18-6-1957 the Petitioner applied for a week's leave on the ground of health and on the same date opposite party No. 4 passed an order framing charges against the Petitioner Under Section 69A (1) of the Municipalities Act and placing him under suspension. The said order was served on the Petitioner on 21-6-1957. On 19-6-1957 the telephonic connection sanctioned by the Board at the official residence of the Petitioner was disconnected under the orders of opposite party No. 4. The Petitioner was threatened to vacate the official residence forthwith. On 22-6-1957 the District Magistrate sent a letter to the opposite party No. 4 asking him to place the matter of suspension of the Petitioner before the Board and further holding that the order of suspension of the Petitioner was without jurisdiction. The Petitioner thereupon assumed his duties and started functioning as Executive Officer of the Board. On 28-6-1957 opposite party No. 4 passed an order appointing opposite party No. 5 Shri Brij Basi Lal as Executive Officer of the Board with effect from the same date. On l-7-1957 the petition for special leave to appeal by Shri Tara Chand Modi came up for hearing before the Supreme Court and by the agreement of the parties the interim stay order was directed to be continued till the disposal of the writ petition was pending in this Court. On 2-7-1957 the Petitioner thereafter sent a letter to the opposite party No. 4 explaining his position and praying for time till 4-8-1957 for furnishing his explanation. On 4-7-57 opposite party No. 3, Shri Tara Chand Modi passed an order reinstating the Petitioner from the date of his suspension with full pay and allowances holding him not guilty and quite innocent and by the same order the services of opposite party No. 5 were dispensed with. On 10-7-1957 opposite party No. 4 sent a telegram to the Petitioner intimating that the State Government had upheld his order suspending the Petitioner and directing him to hand over the official files etc. to the officiating Executive officer. On 11-7-1957 a telegraphic reply was sent by the Petitioner to the opposite party No. 4. On 12-7-1957 the Petitioner received a copy of the letter dated 4-7 1957 sent by the Secretary to the State Government addressed to the Commissioner, Meerut Division, stating therein that the State Government did not propose to interfere with the order of suspension passed by the acting President. On these facts the present petition was filed in this Court on 16-7-1957 u/Art. 226 of the Constitution challenging the order of suspension of the Petitioner passed by opposite party No. 4 on 18-6-57. It was also pointed out in the affidavit filed in support of the petition that the function of the opposite party No. 4 as Vice President has also been challenged by means of another writ petition filed by a member of the Board. After filing of this petition notice was issued. The writ petition filed by Sri Tara Chand Modi challenging the order of the State Government removing him from the presidentship of the Board was rejected by me. In special Appeal, however, the order of the State Government dated 27-4-1957 removing him from the presidentship has been set aside by the order of the Court dated 18-9-1957.
(2.) Three points were raised by the Petitioner in support of the present petition. Firstly, it was urged by him that as by the order of the Supreme Court the operation of the order of his removal was stayed Shri Tara Chand Modi continued to be the president of the Board and the opposite party No. 4 had no power to suspend the Petitioner Under Section 69A of the Municipalities Act. Secondly, it was contended by him that the resignation which was tendered by the Senior Vice President Sri Abdul Rashid on 24-3-1957 was not properly accepted inasmuch as the President alone had a right to accept that resignation. Consequently, the election of Sri Mahesh Prasad as Vice President was itself defective. Even if it be accepted Under Section 54A of the Municipalities Act Senior Vice Chairman could be elected the procedure provided under that section was not followed. It was contended that the order passed by opposite party No. 4 suspending the Petitioner was illegal inasmuch as the Vice President had no right to pass an order Under Section 69A of the Act and that the order was mala fide. It has also been urged by the Petitioner that in view of the decision of this Court in the Special Appeal by which the order of the removal of Shri Tara Chand Modi has been set aside on the date when the order was passed by opposite party No. 4 Shri Tara Chand Modi was the President and the Opposite party No. 4 had no power to pass the order Under Section 69A of the Municipalities Act. It is neither necessary nor proper for me to decide the validity of the election of opposite party No. 4 as a Senior Vice President in this petition. The election of opposite party No. 4 has been challenged by means of a separate petition and the proper proceedings in which the question of the validity of the election of the opposite party No. 4 can be examined is the said writ petition filed by the member. Moreover, at any rate, he was doubtful as to how far Shri Tara Chand Modi was competent to function as the Chairman at the time when the resignation by Shri Abdul Rashid was tendered. In this view of the matter and as I am deciding the petition on other points raised by the petition it is not necessary to deal with this matter any further, and examine the validity of the election of opposite party No. 4 as the Vice Chairman.
(3.) As regards the question raised by the Petitioner that Shri Tara Chand Modi in view of the stay order passed by the Supreme(sic) Court was functioning as the Chairman on the date when the order was passed by opposite party No. 4 it is not necessary to base my decision on that question. There is some controversy between the parties as to what was the actual order of stay passed by the Supreme Court; whether the effect of the Supreme Court order was to maintain the status quo or the only effect of the order was that the operation of the order of the removal was stayed. The contention raised by the opposite party is that Under Section 47A, Sub-section (2) on the expiry of three days from the date of communication the President was incapacitated to function. That legal consequence which followed from the failure of the president to resign within a certain period will not be affected by the stay order passed by the Supreme Court staying the operation of the removal order passed by the State Government Under Section 47A (2) The question is a very doubtful one. As there is a controversy between the parties with regard to the actual order of stay passed by the Supreme Court, I would therefore not base my opinion on this controversial question.;