Sri Mewa Lal Yadava v. State of Uttar Pradesh — 1957 DIGILAW 337 (ALL)

JUDGMENT G. Mehrotra, J. - This is a petition under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the proceedings for the removal of the Petitioner from the membership of the Municipal Board, Bhadohi, the notice dated 12-1-1957, issued to him to show cause and the order of removal dated 5-8-1957. 2. The Petitioner was elected a member of the Municipal Board, Bhadohi, in the year 1953 and was elected as the Senior Vice President of the Board in the year 1955. Since then he has been acting as Vice President of the Board. Some complaint was made to the District Magistrate of Banaras against the present Petitioner. The District Magistrate sent a communication to that effect to the Commissioner of the Banaras Division who moved the State. Government for taking action against the Petitioner under Sub-section (3) of Section 40 of the UP Municipalities Act. On 12-1-1957, a letter was received by the Commissioner of the Banaras Division calling upon him to serve the notice dated 12-1-1957, on the Petitioner and ask the Petitioner to show cause within 15 days of the receipt of such notice why he should not be removed from the membership of the Municipal Board under Sub-section (3) of Section 40 of the UP Municipalities Act on the ground that he bad abused his powers while acting as President of the Board. The Petitioner then submitted his explanation on 4-5-1957, and disputed the allegations made against him. The State Government thereupon issued an order on 5-8-1957, removing the Petitioner from the membership of the Board. It is against that order that the present petition has been filed in this Court. 3. Three grounds have been urged by the Petitioner. Firstly, it is contended by him that the charge against the Petitioner is that he abused his position as the Acting President and, consequently, the Petitioner should have been removed u/s 48 of the UP Municipalities Act, 1916. No Proceedings could be taken against him for his removal under Sub-section (3) of Section 40 of that Act. The second contention raised by the Petitioner is that the charges are vague; they have no relation to the grounds on which action can be taken under Sub-section (3) of Section 40 of the UP Municipalities Act, 1916. No Proceedings could be taken against him for his removal under Sub-section (3) of Section 40 of that Act. The second contention raised by the Petitioner is that the charges are vague; they have no relation to the grounds on which action can be taken under Sub-section (3) of Section 40 of the UP Municipalities Act, 1916. Lastly, it is contended that no reasonable opportunity was given to the Petitioner to show cause against the charges. 4. As regards the first contention raised by the Petitioner, it is sufficient to point out that Section 48 provides the procedure and contains the grounds on which a President of the Board can be removed. The Petitioner acted as President for a short time in the absence of the President but the action has not been taken to remove him from the office of the president but from his office of the member of the Board and, consequently, it cannot be said that the proceedings should have been taken u/s 48 and not under Sub-section (3) of Section 40 of the Act. The conduct, on which the action has been taken against the Petitioner, was no doubt of the period when he acted as the President but the State Government has removed him from the membership of the Board. He was a member of the Board and action could be taken against him u/s 40. There is, therefore, no Substance in so far as the first contention raised by the Petitioner is concerned. 5. Coming to the second point raised by the Petitioner, it is necessary to refer to the charges served on the Petitioner. The charges are as follows: You have so flagrantly abused your position while acting as President of the Municipal Board, Bhadohi, as to render your continuance as a member detrimental to the public interest, instances where of are as fallows: (1) That you, while acting as President, grained permission to Sri Shitla Prasad to construct an enclosure completely blocking the public thoroughfare. This was an encroachment and the previous approval of the Executive Engineer was not obtained as the rate is (sic)docated within a radius of 220 yards of the Provincial Road. This was an encroachment and the previous approval of the Executive Engineer was not obtained as the rate is (sic)docated within a radius of 220 yards of the Provincial Road. (2) That you, while acting as President, ordered demolition of the house of Sri Dhantal Gareria residing within limits of the Bhadohi Municipality though he had obtained the permission of the Board for the construction of the said house. Sub-section (3) of Section 40 of the UP Municipalities Act provides as follows: 40(3)-The State Government may removed from the board a member in 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-section (4) of Section 40 of the Act provides as: 40(4)-When either to be State Government or the prescribed authority, as the case may be, proposes to take action under the foregoing provision 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. It is true that the State Government has to form an opinion on the conduct of a member whether he has flagrantly abused his position in any manner as a member of the Board so as to render his continuance as a member detrimental to the public interest but the opinion has to be based on certain facts which ought to have been brought to the notice of the State Government and that an opportunity has to be given to the Petitioner to explain his conduct. In pursuance of Sub-section (4) of Section 40 the charges were served on the Petitioner. The Charges, as they stand by themselves, cannot amount to a flagrant abuse of his position unless there is any motive behind such action. Charge No. 1 really amounts to this that the permission was granted by the Petitioner without consulting the Executive Engineer which was necessary as the construction was likely to encroach upon the public road. No circumstances have been mentioned in the charge sheet which may lead to an inference that the motive behind that action was a sinister motive. Charge No. 1 really amounts to this that the permission was granted by the Petitioner without consulting the Executive Engineer which was necessary as the construction was likely to encroach upon the public road. No circumstances have been mentioned in the charge sheet which may lead to an inference that the motive behind that action was a sinister motive. In the absence of setting out in detail the facts which led the State Government to come to the conclusion that the motive of the Petitioner in granting permission was a sinister one, the Petitioner cannot be said to have been given a reasonable opportunity to explain his conduct. Reference may be made to the case of Sri Bhagwan Das Burwal v. The State of UP 1956 AWR. (HC) 435 On page 437 of the report it was observed as follows: Now what is the conduct which the Appellant has been called upon to explain in the present case? It is that he sanctioned teases of Municipal land to a number of persons knowing that the powers to sanction leases could be exercised only by the Board, and that he did so with a sinister motive. The occasions on which he so sanctioned leases are not stated; particulars of some of the instances of his having done so are given, and the implication clearly is that there are other instances the existence of which have been taken into consideration in determining his guilt. But it is not the mere irregular sanctioning of leases which constitutes the gross misconduct attributed to the Appellant; it is the sanctioning of these leases with a sinister motive. The motive is in this case the foundation of the charge; and what it was has not been stated. 6. What then remains of the "charge"? In our opinion nothing at all, for the reason (we have stated it already) that the allegation is that what the Appellant did constituted gross misconduct only because it was done with a sinister motive." On page 437 it has been further observed as follows: In support of this submission our attention has been invited to the decision of our brother Bhargava in Chhanga Vs. State, AIR 1955 All 105 . State, AIR 1955 All 105 . The decision in that case turned upon the meaning said effect of Sub-section (3) and (4) of Section 40 of the Municipal Act and is distinguishable on the ground, and also on the ground that it was not in that case contended that there was not material upon which the State Government could conic to the conclusion that the Petitioner had so flagrantly abused his position as member of the board as to render his continuance as a member detrimental to the public interest, in the present appeal the conduct which the Appellant 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 us President: this is not now disputed." It is, therefore, clear that if it appears from the charges that the conduct, which is attributed to the member, does not amount to gross abuse of his position as President so as to render his continuance as a member detrimental to the public interest, no action can be taken under sub./S. (3) of Section 40 of the U.P. Municipalities Act. As I have already pointed out, the permission was not granted in accordance with a procedure provided under the Act and in the absence of any motive attributed for the grant of such permission, it cannot be said that the Petitioner abused his position in any manner so as to make his continuance as a member of the Board detrimental to the public interest. 7. As regards the third point urged by the Petitioner, it is sufficient to point out that the Petitioner, in his explanation has stated that the file containing all the papers connected with charge No. 2 was not supplied to him, and therefore, he was not in a position to give a detailed reply to the charge but, from his memory, he only stated that he never ordered the demolition of the construction. Certain explanation has now been offered by the Petitioner as regards the order of demolition. The State Government in the counter affidavit has refuted that explanation and has challenged the correctness of some of the facts stated by the Petitioner. The question however, is not whether the explanation now offered by the Petitioner can or cannot be accepted. Certain explanation has now been offered by the Petitioner as regards the order of demolition. The State Government in the counter affidavit has refuted that explanation and has challenged the correctness of some of the facts stated by the Petitioner. The question however, is not whether the explanation now offered by the Petitioner can or cannot be accepted. The question is that when, in his explanation, the Petitioner had pointed out that he had not been given all the papers connected with that charge and thus the Petitioner could not give a detailed explanation the State Government should either have directed him to get the record from the Municipal Board and then give his detailed explanation, or should have directed the Chairman of the Board to permit him to inspect the record of the Board. In the circumstance which was mentioned by the Petitioner in his explanation, it cannot be said that it is enough for the State Government to say now that the Petitioner could have got all the information from the record in possession of the Board. In these circumstances, there is substance in the contention of the Petitioner that no reasonable opportunity, as contemplated by sub./S (4) of Section 40 of the Act, was given to the Petitioner. 8. In the circumstances, as mentioned by me, I allow this petition and quash the order of removal passed by the State Government on 5-8-1957. 9. A copy of today's order sheet of this case may be given to the learned Counsel for the Petitioner on payment of the necessary charges.