HAJI ABDUL QAYUM Vs. KESHAV SARAN

JUDGEMENT

(1.) These are two cross appeals arising out of one single petition under Article 226 of the Constitution which was numbered as Writ Petition No. 2081 of 1962. The writ petition related to the passing of no-confidence motion in respect of the President of the Municipal Board of Amroha. The Municipal Board of Amroha consisted of 31 members including the President. General elections for the Municipal Board of Amroha were held in the year 1957 and, at that time, one Muhammad Mian was elected as President. Subsequently, a vote of no confidence was passed against Muhammad Mian. He ceased to be the President and a casual vacancy in the office of the President was declared. This casual vacancy was filled up by an election held on 8th February, 1961. Haji Abdul Quyyum, one of the opposite-parties in the writ petition and the appellant in Special Appeal No. 654 of 1962, was the person elected as President in this casual vacancy. On 4th June, 1962, 16 members of the Municipal Board, who filed the writ petition No. 2081 of 1962 and who are respondents in Special Appeal No. 654 of 1962 and are appellants in Special Appeal No. 763 of 1962, gave a notice of a motion of no confidence against Haji Abdul Qayyum under Section 87A of the U. P. Municipalities Act, to the District Magistrate. On nth June, 1962, the District Magistrate passed an order directing that the meeting for consideration of the motion be held on 7th July, 1962, to be presided over by a judicial officer, the judicial officer being a Munsif. One day before the date of the meeting, i.e., on 6th July 1962, Haji Abdul Qayyum filed Suit No. 54 of 1962 in the court of the Civil Judge of Moradabad in which he joined all the other 30 members of the Municipal Board as defendants. The relief claimed in the suit was for a declaration that the motion of no-confidence was ultra vires and void and, in addition, a permanent injunction was sought restraining the 30 members from holding a meeting for consideration of that no-confidence motion. On the same date, i.e., 6th July 1962, an application was made in connection with the suit for a temporary injunction. The injunction was sought against the District Magistrate of Moradabad restraining him from convening the meeting on 7th July, 1962, or onwards for consideration of the motion of no-confidence, and a further direction was sought against the District Magistrate to stop the meeting from being held on 7th July, 1962, in the office of the Municipal Board of Amroha for the consideration of the motion of no-confidence. The Civil Judge heard this application and passed an ex parte order on the same date, i.e., on 6th July, 1962. The prayer, which was made in the application for temporary injunction in. the form in which it was put, was refused on the ground that the Civil Judge could not issue any injunction to the District Magistrate who had not been impleaded as a party in the suit. The Civil Judge, however, proceeded to issue an interim injunction against the 30 defendants in the suit who were all the 30 members of the Municipal Board besides the plaintiff, Haji Abdul Qayyum, restraining the defendants from holding the meeting on 7th July, 1962, for discussion of the no-confidence motion or thereafter till further orders of the court. The Civil Judge added a sentence directing that a copy of the order of the interim injunction be sent to the District Magistrate, Moradabad, and Munsif, Moradabad, for their information and necessary action in accordance with the law. The result of the issue of this temporary injunction was that no meeting was held for the consideration of the no-confidence motion on 7th July, 1962, even though the temporary injunction order was actually served on the defendants after 5 P. M. which was a time one hour later than the time of 4 P. M. fixed for the meeting. It appears that the members got information that the issue of such a temporary injunction had been directed by the court, so that they did not come for the meeting. The Munsif, who was to preside at the meeting, also did not come.

(2.) On 9th July, 1962, 16 of the defendants in the suit, who later filed this writ petition No. 2081 of 1962 and who were the 16 members who had given notice of the no-confidence motion, presented an application to the Civil Judge for vacating the interim order. On that application, the Civil Judge fixed 10th August, 1962 as the date for hearing. Then on 9th July, 1962, an application was made to the Civil Judge by Panna Lal, one of the writ petitioners that the hearing of the application be expedited whereupon the date of hearing of the application was brought forward to 21st July, 1962. On nth July, 1962 another writ petitioner, Radhey Shyam, moved one more application for still earlier hearing, but that application was rejected. On 21st July, 1962, the application could not be heard as three of the defendants in the suit had not been served and the date was changed to 31st July, 1962. Thereupon this writ petition No. 2081 of 1962 was filed by the 16 petitioners in this Court on 25th July, 1962 .praying for issue of three writs.

(3.) The first prayer was for a writ of certiorari quashing the order of the Civil Judge dated 6th July, 1962, issuing the interim injunction. The second prayer was for the issue of a writ of prohibition restraining the Civil Judge from proceeding with the suit, and for a direction to him to dismiss that suit. The third prayer was for issue of writ of mandamus directing the District Magistrate of Moradabad to convene a meeting for the consideration of the no-confidence motion at the office of the Braid on such date and time as may be appointed by him and to arrange with the District Judge for a stipendiary civil judicial officer to preside over the said meeting. This petition was admitted by a learned Single Judge of this Court on 25th July, 1962, and ad interim order was passed suspending the operation of the interim injunction order made by the Civil Judge on 6th July, 1962. On 27th August, 1962, the petition itself was allowed to the extent that the Civil Judge's interim injunction order dated 6th July, 1962, was quashed and a direction was issued to the District Magistrate to hold a meeting for the consideration of the no-confidence motion. The learned Single Judge remained silent with regard to the prayer for issue of a writ of prehibition to the Civil Judge not to proceed with the suit pending before him, and also refrained from making any mention of the prayer that the Civil Judge be directed to dismiss the suit. Special Appeal No. 654 of 1962, in these circumstances, has been presented by Haji Abdul Qayyum against the judgment of the learned Single Judge dated 27th August, 1962, issuing the two writs which were sought by the petitioners in the petition, viz., the writ of certiorari quashing the Civil Judge's order dated 6th July, 1962, and the writ of mandamus directing the District Magistrate to hold the meeting for consideration of the no-confidence motion. The cress appeal No. 763 of 1962 has been filed by the petitioners of the writ petition praying that a writ of prohibition be also issued by this Court directing the Civil Judge not to proceed with the suit pending before him on the ground that he had no jurisdiction to deal with that suit. We may mention that the learned Single Judge, in his judgment dated 27th August, 1962, came to the finding that the Civil Judge had no jurisdiction to entertain the suit because his jurisdiction was barred under Section 87A (15) of the U. P. Municipalities Act but chose to grant only two out of the three prayers that were sought.