O.H. Mootham, C.J.
1. This is an appeal from an order of a learned Judge dated 6-4-1956, dismissing a petition under Article 226 of the Constitution.
2. The appellant was elected a member of the Municipal Board of Ghaziabad in October, 1958. In April, 1954, the State Government started proceedings under Section 40 Sub-sections (3) and (4) of the U. P. Municipalities Act, 1916, for the removal of the appellant from the Board. Those sub-sections read thus :
'(3) Tha State Government may remove from the board a member who in its opinion has so flagrantly abused in any manner his position as a member of the Board as to render his continuance as a member detrimental to the public interest:
(4) Provided that when either the State Government or the Prescribed Authority as the case may be, proposes to take action under the foregoing provisions of this section an opportunity of explanation shall be given to the member concerned, and when such action is taken, the reasons therefor shall be placed on record.'
The charge made against the appellant was
'That he contravened the provisions of Section 178 of the U. P. Municipalities Act, 1916, and the Building Bye-Laws made thereunder when soon after his election as member of the Ghaziabad Municipal Board he restarted on November 28, 1953, the unauthorised constructions of the building on plot No. 827 of land outside Sihani Gate, which land had been acquired by the Government for the Ghaziabad Municipal Board for their development schemes. Being in full knowledge of these facts he has, by his said action, so flagrantly abused his position as a member of the Board as to render his continuance as member detrimental to public interest.'
The appellant submitted an explanation, but this* was found unsatisfactory, and by an order dated 15-7-1955, ho was removed from the Board; and on 9-9-1955, he filed the petition against the rejection of which this appeal has been filed.
3. Shortly after the petition had been filed, on 10-10-1955, a bye-election was held to fill the casual vacancy caused by the removal of the appellant, and one Lajpat Rai was declared duly elected. The appellant thereafter obtained an order from this Court making Lajpat Rai a party to the petition.
4. The learned Judge held that Section 40(3) of the Act clothed the State Government with authority to determine, on the basis of its own opinion, whether the member had abused his position as such as well as to decide whether such abuse was so flagrant as to render his continuance as a member detrimental to the public interest; and that although in his opinion the conduct attributed to the appellant did not amount to an abuse of his posi-tion as a member the decision of the State Government was one which, in the absence of bad faith (which he held not to be established) could not be questioned in any Court. Tho learned Judge was also of opinion that the petition failed on other grounds namely (a) that as Lajpat Rai had been elected during the pendency of the petition he could only be removed by an election petition under Section 19 of the Municipalities Act and consequently the appellant could obtain no effective relief by the present petition and (b) the appellant had an alternative remedy by way of suit. He accordingly dismissed the petition, but as in his opinion the order of removal was wrong he made no order as to costs.
5. The argument for the appellant in this Court is that the learned Judge misdirected himself as to the meaning and effect of Section 40(3), that upon a true construction of that sub-section the fact that the member had acted in his capacity as ia member is a condition precedent to the exercise of jurisdiction by the State Government and that the existence of this, condition precedent is a justiciable matter. It is further contended that the learned Judge erred in holding that Lajpat Rai's elec-tion could not be set aside save by the process of an election petition, or that the appellant had an adequate alternative remedy by way of suit.
6. The principal question which arises in this appeal, namely the proper interpretation of Section 40(3) of the Municipalities Act, is covered by direct authority, Municipal Board Hatras v. Bakhtawar Lal, Special Appeal No. 478 of 1955, D/-12-1-1956 (A), an unreported decision which it is clear was not brought to the notice of the learned Judge. In that case a Bench of this Court took the view that the conduct of the member to which exception is taken must be conduct in his capacity as a member, that tin's is a condition precedent to the exercise by the State Government of its powers under the subsection, and that it is only when this condition is fulfilled that the State Government is vested with authority to remove the member if in its opinion his conduct constitutes such a flagrant abuse of his position as to render his continuance as a member detrimental to the public interest. If the condition precedent exists the opinion of the State Goverru ment is final and cannot be questioned in any court; but the State Government's opinion as to whether that condition has been fulfilled is subject to challenge.
7. This decision is binding on us, but we are asked to refer the question to a larger bench on the ground that that decision is in conflict with the earlier case of U. P. Government, Lucknow v. Ra-dhey Lal AIR 1948 All 179 (B) and is erroneous. In Radhey Lal's case (B) the Court held that where the Provincial Government had properly exercised the powers conferred upon it by Section 40(3) and its action was not capricious, wanton and arbitrary, the order of the removal could not be questioned in any court. It is true that in the course of his judgment Bind Bansi Prasad, J. says, at p. 181 of the Report:
'The words 'in its opinion, appearing therein' -- that is Section 40(3) -- are important and convey the idea that the sole judge of the fact whether or not a member lias flagrantly abused in any manner his position is the Provincial Government'.
But the fact that the conduct of the member to which exception was taken was conduct in his capacity as a member was not in that case in dis-puto. The question which we have to consider did not therefore arise. Malik, J. (as he then was) concurred in the conclusion reached by Bind Basni Prasad, J, on the broad ground that as the Provincial Government had followed the procedure laid down in the sub-section in good faith its order of removal could not be questioned. We agree with the view expressed by the Bench in Bakhtawar Lal's case (A) that the earlier decision is not an authority for the proposition that the subjective opinion of the State Government that a member has acted in his capacity as a member cannot be challenged.
8. Wo are moreover of the opinion, with respect, that the construction placed upon the subsection in Bakhtawar Lal's case (A) is correct. The question is not free from difficulty, but assistance in construing the sub-section is we think to be derived from the decision of the Judicial Committee in the case of Hubli Electricity Co. Ltd. v. Province of Bombay . In that case their Lordships had to consider the question of the construction of Sub-section (1)(a) of Section 4 of the Indian Electricity Act, 1910, which reads as follows:
4(1). The Provincial Government may, if in its opinion the public interest so requires, revoke licence in any of the following cases, namely:
(a) Where the licensee in the opinion of the Provincial Government makes wilful and unreasonably prolonged default in doing anything required of him by or under the Act.'
Their Lordships said at p. 65 of the Report (Ind App): (at p, 139 of AIR):
'The language leaves no room For the relevance of a Judicial examination as to the sufficiency of the grounds on which the government acted in forming an opinion. Further, the question on which the opinion of the Government is relevant is not whether a default has been wilful and unreasonably prolonged but whether there has been a wilful and unreasonably prolonged default. Upon that point the opinion is the determining matter, and -- if it is not for good cause displaced as a relevant opinion -- it is conclusive, But there the area of opinion ceases. The phrase 'anything required under the Act' means 'anything which, is required under the Act'. The question what obligations are imposed on licensees by or under the Act is a question of law. Their Lordships do not read the section as making the government the arbiter on the construction of the Act or as to the obligations it imposes. Doubtless the Government must, in expressing an opinion for the purpose of the section, also entertain a view as to the question of law. But its view on law is not decisive. If in arriving at a conclusion it appeared that the Government had given effect to a wrong apprehension of the obligations imposed on the licensee by or under the Act the result would be that the Government had not expressed such an opinion as is referred to in the section.'
9. Section 40(3) of the U. P. Municipalities Act confers upon the State Government the power to remove a member. It can do so if in its opinion he has so flagrantly abused his position ax a member that his further continuance in office is against the public interest. In order to entertain an. opinion for the purposes of this sub-section the State Government must necessarily entertain a view as to whether the member acted, in relation to the conduct complained of, in his capacity as a member. This however is a question of law, and we do not think that it was the intention of the legislature that the State Government's view on that question should be final. If the State Government removes a member for misconduct unconnected with his position as a member then it has done something for which the sub-section provides no warrant, and its opinion, in the words of the judgment in the Hubli Electricity Co.'s case (C) is not such an opinion as is referred to in the section.
10. Learned counsel for the State then argues that the learned Judge's finding that the appellant did not, in relation to the matter which is the subject of the charge against him, act as a member, is erroneous. Now the facts, very shortly stated, are that some time prior to October 1952 the appellant acting, it appears, on behalf of his mother constructed a building for use as a dharamshala on a piece of land which had at one time belonged to this lady and her two sons, including the appellant, but which later had been acquired by Government for the use of the Municipal Board.
The building was constructed without the sanction of the Municipal Board being first obtained as required by Section 178(1) of the Act. It is now not in dispute that the construction of the budding was completed in October, 1952, save only that the walls required plastering and the floors had to bo cemented. In November, 1953 the appellant arranged for the work of plastering the outside walls and cementing the floors to be taken in hand. This work was completed in January. 1954. The appellant was a member of the Board while this plastering and cementing was being clone, but he was not a member when, the building was erected. Dealing with this matter the learned Judge said:
'The cementing and the plastering had nothing to do with his being a member; he did not do these acts in his position as a member or because he was a member. When he bad constructed the whole building without being a member, he would have finished it by plastering and cementing without sanction even if he had not been elected a member. He was required to obtain sanction only before commencing the construction. He committed only one offence by constructing the building without a sanction and that was when he commenced the construction .....He did net instruct any municipal employee to condone the breach of the bye-laws or not to take any notice of the plastering and cementing. He never professed to be exempt from any liability for the construction without sanction on account of his being a member.'
Learned counsel's argument is that a member abuses his position as a member of the board if, while he is a member, he contravenes any of the provisions of the Municipalities Act, or the bye-laws made thereunder. We are unable to accept this view, but, even if it be correct the conduct of the appellant is not such as would bring him within this definition. The learned Judge has held, and we think rightly, that while he was a member the appellant contravened no bye-law; if contravention there was, it occurred when the construction of the building was commenced, and this was before the appellant became a member. Without attempting an exhaustive definition, we are of opinion that a member abuses his position as a member when he misuses his position for the benefit of himself or some other person. There is nothing on the record of the case before us to show that the appellant so acted, and we are of opinion that the conclusion reached by the learned Judge was right. The charge formulated against the appellant, in truth, discloses no facts which could bring the case within the ambit of the sub-section.
11. In the circumstances it is not necessary for us to express any opinion on the question whether the impugned order was made in bad faith.
12. It remains now to consider the alternative grounds upon which the learned Judge was of opinion that the petition must fail. The first of these was that as Lajpat Rai had been elected during the pendency of the petition he could be removed only by an election petition under Section 19 of the Municipalities Act, and that consequently the appellant could have obtained no effective relief by the petition then before the Court. Learned Counsel for the respondents have not sought to support this part of the judgment as it is in conflict with the Full Bench decision of Bahori Lal v. Dist. Magistrate, Bulamlshahr : AIR1956All511 in which the Court was unanimously of opinion that if, in fact, no casual vacancy has occurred, any election held to fill up that alleged vacancy would be no election at all and must therefore be ignored as being void and of no effect. That judgment, it is proper to say, was delivered after the judgment which is now before us in appeal.
13. Finally, the learned Judge was of opinion that the appellant had an alternative remedy by way of a civil suit. Now this Court is very reluctant to interfere with the exercise by a learned Judge of his discretion under Article 226 of the Constitution. We think, however, that we cannot overlook the fact that this Court has in the last few years entertained a large number of writ petitions iu which the validity of proceedings connected with the election of members of municipal boards ha& been challenged, on the ground that the alternative remedy by way of a suit is not a remedy equally convenient, beneficial and effective. Fresh municipal elections are likely to be held in October of this year, and, if the order of the State Government removing the appellant stands, then the appellant is under S,; 41(3) of the Act disqualified for further election for a period of four years from the date of his removal. It is therefore clearly desirable that this question should be finally decided before the next elections are held, and we are satisfied that, in view of the present congested state of the lists in the Civil courts, that object would not be achieved had the appellant been compelled to pursue his alternative remedy. We think therefore that that remedy, although it exists, is not an adequate remedy arid that the appellant is entitled to Keek relief in this Court by way of a writ petition;
14. For these reasons we are of opinion that this appeal must succeed. It is accordingly allowed, and a writ will issue quashing the order of the State Government dated 15-7-1955, removing the petitioner. As the effect of this order is that there was no casual vacancy it follows that the election of Sri Lajpat Rai is null and void.
15. The appellant is entitled to his costs whichwe assess at Rs. 200/-.