JUDGMENT Mehrotra. J. 1. The Petitioner Sri Vidya Sagar Dixit was elected member of the Municipal Board Mawana, district Meerut, in 1953. On 15-10-1955 the Petitioner received a charge-sheet requiring him to submit his explanation within two weeks of the receipt of the charge-sheet. On 21-10-1955, the Petitioner alleges, that he applied to the President of the Board for permission to inspect the file of one Sri Shamshad Husain who had applied for the construction of his house on 11-10-1954 but the Petitioner was informed that the file was with Sub-Divisional Magistrate. On 22-10-1955 the Petitioner sent a letter to the District Magistrate requesting him for the inspection of the file but no reply was received by him from the District Magistrate. The Petitioner in spite of the handicap for not having been permitted to inspect the file submitted his explanation on 30-10-1955. On 4-8-1956 the Petitioner received a copy of the letter from the Secretary to Government of U.P. dated 28-7-1956 intimating to him that he had been removed from membership of the Municipal Board of Mawana. On these facts the present petition has been filed under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the order of the State Government dated 28-7-1956 removing the Petitioner from the membership of the Municipal Board and further to issue a writ of mandamus commanding the opposite parties not to interfere with the Petitioner's right of membership. 2. This petition was filed on 16-8-1956. Notices were issued to the opposite parties who are the State of U.P. and the President, Municipal Board, Mawana, district Meerut. A counter affidavit has been filed on behalf of the opposite party No. 2. In the counter-affidavit filed on behalf of the State it is stated that a number of complaints were received by the Government stating that the applicant had been abusing his position as a member of the Municipal Board, Mawana. It is then stated that the Sanitary Inspector made a report that the constructions which proposed to be made by Sri Shamshad Husain involved encroachment on the Municipal land. The Petitioner made an inspection on 22-10-1954. It is then stated that the Sanitary Inspector made a report that the constructions which proposed to be made by Sri Shamshad Husain involved encroachment on the Municipal land. The Petitioner made an inspection on 22-10-1954. In his original report he stated that the chabutara of Sri Shamshad Husain was clearly an encroachment and he should not be granted any permission; but subsequently he tampered with his report so that it may read as if in the Petitioner's opinion the disputed chabutara involved no encroachment and permission may be accorded. The President of the Board while forwarding the explanation of the Petitioner remarked as follows: Sri Shamshad Husain applied on 9-10-1954 for permission to construct walls towards north and east and one 4' chabutara towards east beyond the wall as shown in the site plan attached with the application. The Sanitary Inspector reported on 20-10-1954 that the land is Municipal land. The D.M.O.H. noted down that the applicant may be informed accordingly. There is also a report on the application of Sri Vidya Sagar Dixit Chairman P.W.C. dated 22-10-1954 but the report in itself shows that he agreed with the report of the Sanitary Inspector. On a perusal it shows that originally the following was noted down by him: Main ne asthan ka nirakshan kiya. Chitra se hi chabutara saf barhao dikh parta hai. Atah agyan na di jaye. But it seems later on the italicized word No. 1 was cut off and in No. 2 the letter ba was cut and dha was changed into thi and the letter wa was made ka so as to be read out a thik and the word na italicized No. 3 was also cut out. It is asserted in the counter-affidavit that complaints were received by the Government against the Petitioner on which enquiries were made by the local authorities and after consideration of the reports submitted by the local authorities it was thought desirable to frame charges against the Petitioner. The Petitioner was duly served with the charges and he was asked to submit his explanation which he did. The Petitioner was duly served with the charges and he was asked to submit his explanation which he did. The State Government after duly considering the entire materials on the record including the explanation of the Petitioner and on being satisfied that in its opinion the Petitioner had so flagrantly abused his position as a member of the Board as to render his continuance as a member detrimental to the public interest removed him from the membership of the Board. 3. As regards the complaint of the Petitioner that he had no opportunity to examine the record, it is stated in the counter-affidavit that subsequently the Petitioner examined the records and wrote to the District Magistrate on 4-11-1955 that he had nothing further to add to his explanation. In para. 10 of the counter-affidavit it is denied that the Petitioner's recommendation on Sbamshad Husain's application was bonafide, It is further stated in that para, that the Sanitary Inspector had already noted that the chabutara was not in order as the proposed constructions involved encroachment on the Municipal land. 4. A rejoinder-affidavit has been filed in which the facts which were asserted earlier in the petition are reiterated. 5. It is necessary in order to appreciate the points raised by the Petitioner to refer to the charge-sheet handed over to the Petitioner on which he was called upon to submit his explanation. The charge is annexure 'A' to the affidavit and it reads 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: Sri Shamshad Husain submitted a site plan for certain constructions on which the board's Sanitary Inspector reported that the said plan was not in order as the proposed constructions, involved encroachment on municipal land and the District Medical Officer of Health had ordered that Sri Husain should be informed accordingly. In the face of the above fact, Sri Vidya Sagar Dixit made a note on Sri Husain's application to the effect that he had inspected the site and the plan was in order and that permission should be granted, which note eventually led the Public Works Committee to sanction the Plan on 27-10-1954. In the face of the above fact, Sri Vidya Sagar Dixit made a note on Sri Husain's application to the effect that he had inspected the site and the plan was in order and that permission should be granted, which note eventually led the Public Works Committee to sanction the Plan on 27-10-1954. In short therefore the instance which the Petitioner was called upon to explain was that the Petitioner in spite of the note of the Sanitary Inspector and the District Medical Officer of Health on the plan submitted by Sri Shamshad Husain that it was not in order as it involved encroachment on the Municipal land recommended the application of Shamshad Husain after inspecting the site and relying upon that recommendation the Public Works Committee sanctioned the plan. Section 40 of the Municipalities Act under which the power has been exercised by the State Government reads as follows: The State Government in the case of a city, or the Prescribed Authority in any other case, may remove a member of the board on any of the following grounds: sub-cl (3) of Section 40 is 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 said section provides that: 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 the record." The contention raised by the Petitioner is that there has been non-compliance with the provisions of Section 40, Sub-clause (4) of the Municipalities Act. It has been further argued by the Petitioner that the conduct of the Petitioner on which he has been removed by the State Government cannot amount to a flagrant abuse of his position in a manner as to render his continuance detrimental to the Public interest. It has been further argued by the Petitioner that the conduct of the Petitioner on which he has been removed by the State Government cannot amount to a flagrant abuse of his position in a manner as to render his continuance detrimental to the Public interest. Sub-clause (4) of Section 40 expressly requires that an opportunity of explanation shall be given to the member concerned, and if the charges which a member is asked to explain by themselves cannot constitute a flagrant abuse of the position as a member of the Board as to render the continuance of the member detrimental to the public interest, but the motive behind that action may render the act a flagrant abuse, it is necessary to mention in the charge-sheet the motive so that a member can give his explanation and unless that is mentioned in the charge-sheet it cannot be said that a member had been afforded a sufficient opportunity to give his explanation as contemplated under Sub-clause (4) of Section 40. The mere use of the language employed in Sub-clause (3) o Section 40 in the charge-sheet doss not to my mind clearly specify the charges against the Petitioner. As I have already pointed out the charge-sheet only contained the fact that the Petitioner in spite of a contrary report by the Sanitary Inspector and the District Medical Officer of Health recommended that the sanction should be accorded to Shamshad Husain inasmuch as in his opinion the plan was in order. The Municipal Board is itself a creation of statutes. It is a body where the administration of a local area has been entrusted to certain elected representatives of the public of that area. A member represents the people of the Municipality and it will be really a negation of democracy if it is held that the mere fact that a member gives his report which is contrary to the note put up by the employees of the Board or the State Government, namely, the Sanitary Inspector and the District, Medical Officer of Health by itself amounts to a flagrant abuse of his position. There is nothing in the Municipalities Act which enjoins upon a member to act in obedience to the command of the Sanitary Inspector or the Health Officer and not to exercise his own independent mind on any matter which comes up before him. There is nothing in the Municipalities Act which enjoins upon a member to act in obedience to the command of the Sanitary Inspector or the Health Officer and not to exercise his own independent mind on any matter which comes up before him. The entire gravamen of the charge, which I have already quoted, is that the Petitioner gave a report in spite of the contrary report of the Sanitary Inspector and the Health Officer. In the charge-sheet itself there is no suggestion or mention that the report was an incorrect report or that it was prompted by any sinister motive. In the absence of any assertion in the charge-sheet itself it was not possible for the Petitioner to have offered any explanation to that effect and if the State Government now intends to justify the action taken by it on the ground that the report of the Petitioner was based on certain sinister motive it cannot be said that the Petitioner was given an opportunity to offer explanation within the meaning of Section 40(4). 6. It was then contended by the State Counsel and it is also stated in the counter-affidavit that the Petitioner not only gave an incorrect report which must necessarily have been inspired by some sinister motive but he tampered with his earlier report. If that was the real charge against the Petitioner it should have been in all fairness mentioned in the charge-sheet and unless that was done it cannot be said that the Petitioner had been given an opportunity to offer his explanation with regard to this allegation. It is not open to the State Government at this stage now to justify the order on the grounds which were not mentioned in the charge-sheet which the Petitioner was asked to explain. 7. It was also argued by the counsel for the State that u/s 40, Sub-clause (3), the question whether a member has so flagrantly abused in any manner his position as a member detrimental to the public interest is a matter which has been left to the subjective opinion of the State Government and the instances which led the State Government to form its opinion are only the evidences and whether that evidence was sufficient or not is not a matter which can be gone into by this Court in the exercise of its power under Article 226 of the Constitution. If this argument of the State Government is accepted then Sub-clause (4) of Section 40 becomes nugatory. Sub-clause (4) of Section 40 provides for a safeguard to the member against whom the State Government has formed certain opinion. After the State Government has formed an opinion on certain preliminary materials before it under Sub-clause (3) that a member has flagrantly abused his position the State Government has to give an opportunity to the member to explain his conduct and the opportunity of explanation cannot be said to have been given to a member if the charge sheet does not contain fully all the facts. If the argument of the State Counsel is accepted that the very fact that the Petitioner gave his report which was contrary to the reports of the Sanitary Inspector and the Health Officer can in any circumstances amount to a flagrant abuse of his position then certainly it can be said that there has been a proper compliance with the provisions of Section 40(4). But as I have pointed out and as it cannot be disputed even by the State Counsel that the giving of a report which is contrary to the reports of the Sanitary Inspector and the Health Officer in a matter which was entrusted to the member as the Chairman of the Public Works Committee and which is a part of his duty as its Chairman cannot by itself amount to a flagrant abuse of his position as a member unless it is pointed out that he was guided by any sinister motive or by a deliberate intention to help a particular individual with the full consciousness that the report was an incorrect report. It is also clear that in respect of any other conduct such as tampering with his earlier report unless that was the subject-matter of the charge it cannot be said that an opportunity of explanation was given to the member with regards to such a charge. It is also clear that in respect of any other conduct such as tampering with his earlier report unless that was the subject-matter of the charge it cannot be said that an opportunity of explanation was given to the member with regards to such a charge. In the case of Sri Bhagwan Das Barnval v. The State of U.P. 1956 AWR (H.C.) 455 it was held by a Bench of this Court in connection with the removal of a President u/s 48 of the Municipalities Act that: Where the conduct which the President of a Municipal Board has been called to explain as stated in the notice served upon him, does not amount to gross misconduct in the discharge of his duties as President, the prima facie satisfaction of the State Government that it does amount to gross misconduct is accordingly based on a misapprehension, and is therefore no satisfaction within the meaning of Section 48(2)(b)(vi) and that being so the proviso to that Sub-section does not come into operation at all and the State Government has therefore no jurisdiction to call upon the President for an explanation and a prohibition should issue forbidding it from continuing the proceedings u/s 48(2)(b)(vi) against the President. 8. At page 436-137 of the report it was observed that: If and when that conclusion is arrived at the proviso then requires that the President should be told clearly what the conduct of his is which in the opinion of the State Government amounts to such gross misconduct. The notice must contain particulars of the facts upon which reliance is placed in sufficient detail to enable the President to deal effectively with the charge or charges in his explanation. 9. It is no doubt true that this case was dealing with the removal of a President u/s 48 of the Municipalities Act but the ratio of that decision to my mind fully applies to the facts of the present case. As I have said, the stage of giving an opportunity to explain u/s 40(4) arises after the State Government had formed its opinion u/s 40(3) on the materials before it. Having formed its opinion a certain material opportunity to the Petitioner to explain his conduct has to give in the charge-sheet with sufficient detail the charges so as to enable the member to explain his conduct. Having formed its opinion a certain material opportunity to the Petitioner to explain his conduct has to give in the charge-sheet with sufficient detail the charges so as to enable the member to explain his conduct. If the charge was that a particular act was done by the member on account of certain motive behind it or that he had tampered with the report it should have been mentioned in the charge-sheet itself, and the absence of this material from the charge-sheet can necessarily lead to two inferences, firstly, that no opportunity was given to the Petitioner to explain his conduct and secondly, that if the only material before the State Government was what is mentioned in the charge-sheet which by itself cannot amount to a flagrant abuse of the position the State Government had not formed an opinion as contemplated u/s 40(3) and therefore the subsequent proceedings were without any foundation, and the order of removal is without jurisdiction and must be quashed. 10. It was also contended by the Petitioner that u/s 40(4) the State Government has to give reasons for removal and in the order which was communicated to the Petitioner no reasons have been given except the statement that the Governor is satisfied that the Petitioner 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. No reasons have been given on what facts and on what circumstances the State Government has come to that conclusion. In view of my decision on the other points it is not necessary to decide this question. 11. I therefore allow this petition with costs and set aside the order of the State Government dated 28-7-1956.