JUDGMENT Mehrotra, J. - This is a petition under Article 226 of the Constitution praying that a writ of certiorari be issued to quash the order of the State Government dated 28-7-1956, removing the Petitioner from Membership of the Municipal Board Mawana Kalan, District Meerut, and further that a writ of mandamus commanding the opposite parties be issued not to interfere with the Petitioner's right of membership of the Municipal Board. The Petitioner was elected member of the Municipal Board, Mawana Kalan, in the year 1953. The Petitioner has alleged in the affidavit that one Aziz Hasan son of Azaz Uddin had submitted an application together with a site plan seeking permission for making certain constructions. At that time the Petitioner was Senior Vice-Chairman of the Municipal Board, Mawana Kalan, and a member of the Public Works Committee and Vidya sager Dixit was the Chairman of that Committee. On 28-5-1954, the Sanitary Inspector had submitted his report on that application stating therein that he had inspected the site, and the proposed constructions involved an encroachment on the Municipal land. Mr. Dixit had also reported that the permission should not be granted. On 22-6-1954, the Public Works Committee passed a resolution that the matter be placed before the next meeting of the Public Works Committee with the report of the Chairman and also of the Petitioner. It was also decided by the Committee that the Executive Officer should also inspect the site with reference to the map and submit his report. On 15-7-1954 the Petitioner inspected the site and sub-terms: Inspected the site. The houses which are situate on both the sides of the site of the house in the map appear to be projecting outside. I, therefore, consider that by granting permission to the Petitioner in accordance with the plan will not be of any harm to the Board. 2. On 5-8-1954, the Officiating Secretary of the Municipal Board circulated the agenda for the meeting of the Public Works Committee to be held on 7-8-1954 at 2 P.M. The Petitioner attended the meeting but left it before it concluded. The sanction was granted by the Public Works Committee. On 14-10-1955, the Petitioner received from the District Magistrate what purported to be a copy of a charge against him asking him to submit his explanation for being forwarded to the State Government. The Petitioner thereafter submitted his explanation. The sanction was granted by the Public Works Committee. On 14-10-1955, the Petitioner received from the District Magistrate what purported to be a copy of a charge against him asking him to submit his explanation for being forwarded to the State Government. The Petitioner thereafter submitted his explanation. On 13-8-1956 he received a copy of an order of his removal from membership purporting to have been passed by the Government of Uttar Pradesh in exercise of its powers u/s 40 Sub-clause (3) of the Municipalities Act. 3. On these facts the present petition has been filed challenging the order of removal. Notices were issued to the opposite party and counter-affidavit has been filed on behalf of the State of U.P. The main contention raised by the Petitioner is that the charge-sheet which was given to the Petitioner does not make out any case u/s 40 Sub-clause (3) of the Municipalities Act, and that other facts which may have been in the knowledge of the State Government acting upon which the order has been passed were not given in sufficient detail in the charge sheet and, consequently, there was no proper opportunity given to the Petitioner to offer his explanation as required u/s 40 Sub-clause (4) of the Municipalities Act. 4. In order to appreciate the points raised by the Petitioner it is necessary to give the charges which are contained in charge-sheet annexure 'A' to the affidavit filed in support of the petition, and runs as follows: That he has so flagrantly abused his position as a member of the Board, as to render his continuance as a member detrimental to the public interest. The following is the instance: On a site plan submitted by Sri Ali Hasan, for permission of the Board for certain constructions proposed to be made by him, the Public Works Committee entrusted the matter to Sri Bhupendra Kumar Dublish, its Chariman and decided that Sri matter in the next meeting. Sri Dublish, although it was in his full knowledge that the Board's Sanitary Inspector and Sri Vidya Sagar Dixit, member had already reported that the proposed constructions involved encroachment on Municipal land, made a report recommending sanction to the site plan submitted by Sri Hasan, without verifying whether or not the site plan included Municipal land and this report of Sri Dublish eventually led the Public Works Committee to sanction the plan. Sec 40 Sub-clause (3) of the Municipalities Act, provides that the 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. Sub-clause (4) of the section provides 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 the record. 5. The order of removal has been filed as annexure 'C' and it may be necessary to refer to the order at a later stage. The charges against which the Petitioner was called upon to offer his explanation was to the effect that in spite of the contrary report of the Board's Sanitary Inspector and Sri Vidya Sagar Dixit, the Petitioner, without independently verifying that the constructions would involve encroachment on Municipal land, recommended sanction of the constructions, and, acting upon that recommendation, the Public Works Committee accorded the necessary sanction. It is very difficult to understand how there is any duty cast upon a member not to give recommendation which is contrary to the report of the Sanitary Inspector, or that which is contrary to the report made by any other member. The mere act of giving such a report does not, and cannot, amount to flagrant abuse of the position as a member so as to render his continuance as a member detrimental to the public interest. There is nothing in the Municipalities Act which compels a member, before giving his opinion on a matter, to make a survey of the site and see whether actually it will involve an encroachment on the Municipal land or not. Apart from it, the report has been quoted in the affidavit filed by the Petitioner and the report itself suggests that as the adjoining houses (sic) the Board if the sanction is granted. The report also does not definitely state that the constructions will not involve encroachment on the Municipal land. Apart from it, the report has been quoted in the affidavit filed by the Petitioner and the report itself suggests that as the adjoining houses (sic) the Board if the sanction is granted. The report also does not definitely state that the constructions will not involve encroachment on the Municipal land. It cannot, therefore, be said that the charges by themselves have any direct relation with the flagrant abuse of the position as a member so as to render the continuance of the Petitioner as a member detrimental to the public interest. Sub-clause (3) of Section 40, Municipalities Act, no doubt, gives power to the State Government to remove a member of the Board who, according to the opinion of the State Government, has flagrantly abused his position as a member, but Sub-clause (4) also provides for an opportunity, to the member to give his explanation, and, if the charges which were communicated to the Petitioner bear no relation to the conditions on which the power could be exercised under Sub-clause (3) of Section 40, it cannot be said that sufficient opportunity was given to the Petitioner to explain his conduct, and if there was any other material in possession of the State on which the opinion could have been formed but that does not seem to have been taken into consideration by the State Government, the very foundation for the exercise of the power of removal does not exist. 6. In the counter-affidavit an attempt has been made to justify the order on the ground that the incorrect report made by the Petitioner was prompted by sinister motives, and that the Petitioner deliberately, knowing that the constructions will involve encroachment on the Municipal land, with a view to harm the Municipal Board, gave evasive report. It that was the suggestion it should have been mentioned in detail in the charge so that-the Petitioner would have had opportunity to explain his conduct in the light of those charges. In the absence of any such thing in the charge, it cannot be said that an opportunity was given to the Petitioner to explain his conduct. There was, therefore, in my opinion, neither a proper charge framed against the Petitioner, nor the condition requisite for the exercise of powers u/s 40, Sub-clause (3) of the Act, was fulfilled in the present case. There was, therefore, in my opinion, neither a proper charge framed against the Petitioner, nor the condition requisite for the exercise of powers u/s 40, Sub-clause (3) of the Act, was fulfilled in the present case. Apart from it, the order of removal itself, as required u/s 40, sub Clause (4), should contain the reasons and, as I have already stated, the order only states that the Governor is satisfied that Sarvsri Vidya Sagar Dixit and Bhupendra Kumar Dublish, have so flagrantly abused their position as members of the Board as to render their continuance as members detrimental to the public interest. What was the reason for coming to that conclusion has (sic) reasons, and u/s 40(3) certain conditions precedent are required for the exercise of the power under that section. If therefore only the conditions are mentioned in the order it cannot be said that reasons have been given. As I have said, the State Government has to form its opinion, as required u/s 40, Sub-clause (3), whether a member has so flagrantly abused his position as to render his continuance as member detrimental to the public interest before exercising its power of removal. Once it has formed an opinion an opportunity is to be given to the member to explain his conduct and thereafter has to pass an order of removal giving its reasons. This necessarily implies that the reasons must refer to the materials on which such an opinion has been formed. Stating the fact in the order that the State Government has formed a certain opinion itself, does not mean that the reasons for the formation of the opinion have been given. In my judgment, therefore, the order of the State Government does not conform to the provisions of Section 40, Sub-clause (4), of the Act. 7. I therefore allow this petition with costs and quash the order of the State Government dated 28-7-1956.