Gopalji Mehrotra, J. - (1.) THE Petitioner was elected as a member of the Municipal Board Chunar, in the year 1953. On 21 -1 -1956 certain charges were served on the Petitioner asking him to show cause why he should not be rem wed from the membership of the Board by the Commissioner. The Petitioner in pursuance of the notice personally submitted his explanation to the Commissioner and sought an interview and tried to explain the matter through the account books. The Commissioner by his order dated 23 -3 -1956 held that charge No. 1 was established against the Petitioner and the charge No. 2 was not established. He, however, ordered removal of the Petitioner Under Section 40 (1) (e) and (d). Appeal to the Government was also rejected. Thereafter the present petition was filed on 13 -12 -1955 and the validity of the order passed by the Commissioner and confirmed in appeal by the Government is being challenged on the grounds that the charges on which the Petitioner has been removed do not fall within the ambit of the provisions of S. 40 (1) (c) or (d). It is necessary for me to make a reference to the charges which had been framed against the Petitioner. I am not concerned with charge No. 2. The only charge which has been proved against the Petitioner is charge No. 1 which is as follows: That you, having been entrusted by the Municipal Board, Chunar, vide resolution dated 5 -1 -1955, to make arrangements for the supply of uniform for the sweepers, Jamadars, peons and other staff in the employment of the said Board, supplied cloth to the value of Rs. 272/9/6 from your own firm, namely Messrs. Jagarnath Das & sons for the said purpose.
(2.) THE Commissioner dealing with the charge has observed that by a resolution of the Board dated 5 -1 -1955 the Petitioner was entrusted to make arrangements for the supply of uniforms to certain class of employees of the Board. No tenders were invited and quotations called from the local cloth dealers for the supply of cloth. The supply was made from the Petitioner's own firm known as Messrs. Jagarnath Dass & Sons in contravention of the provisions of S. 40 (1) (c) and (d)." The Petitioner stated that as no other shop keepers were ready to supply the cloth to the Board on a reasonable price the Petitioner supplied the cloth from the Petitioner's firm on a reasonable price without charging any profit. On that point the Commissioner has remarked that "the failure on the part of the Petitioner to produce the original price list as he claims that he supplied the cloths at the cost price or to prove otherwise clearly goes to show beyond any shadow of doubt that he has benefited himself to some extent, as alleged by the complainants. Even if it be granted for a while that he has not profited in any way in this transaction, his failure to bring the transaction to the notice of the Board or obtaining my previous permission, as required by S. 82 of the Municipalities Act, 16 shows his action was not bona fide. 'At another place he remarked, even if it is held that the transaction is not a contract, it will then fall within the purview of Sub -clause (d) of the said Sub -section "he is in no penitent mood. I, therefore, hold him guilty under this section as the charge is fully established and order the removal of Sri Ram Krishna Dass from the membership of the Chunar Municipality with immediate effect." From a reading of this order it is clear that the Commr. proceeded in the matter as if he was trying a criminal case. It was not a case where he had to find the guilt or otherwise of a member. The Commr. had to decide if the charges have been established against the Petitioner on the materials before him or not. It is contended by the Petitioner that the charge No. I does not come within the scope of S. 40(1) (c) and (d). S. 40 provides as follows: (1) The State Government in the case of a city, or a Prescribed Authority in any other case, (in this case the prescribed authority is the Commr.) may remove a member of the Board on any of the following grounds: (c) that he has within the meaning of S. 82 knowingly acquired or continues to hold, directly or indirectly, or by a partner, any share or interest in any contract by, or on behalf of the board" S. 82 provides: A member or President of a Board who, otherwise than with the permission in writing of the Prescribed Authority, knowingly acquires or continues to have, directly or indirectly, by himself or his partner, any share or interest in any contract or employment, with, by, or on behalf of the board, shall be deemed to have committed an offence Under Section 168 of the IPC.
(3.) SUB -section (2) of S. 82 provides: Provided that a person shall not be deemed for the purposes of Sub -section (1) to acquire, or continue to have, any share or interest in a contract or employment by reason only of his - (f) having a share or interest in the occasional sale of an article in which he regularly trades to the board to a value not exceeding in any one year, such amount as the board, with the sanction of the State Government, fixes in this behalf.;