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2003 DIGILAW 2343 (ALL)

BRIJESH KUMAR YADAV v. STATE OF U P

2003-09-30

MARKANDEY KATJU, UMESHWAR PANDEY

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M. KATJU, J. This writ petition has been filed against the impugned order dated 14-5-2003 passed by the District Magistrate, Gorakhpur Annexure-1 to the writ petition. The petitioner has also prayed for a mandamus directing the respondents not to interfere in his functioning as Chairman, Nagar Panchayat, Sahjanwa, District Gorakhpur. 2. Heard learned Counsel for the parties. 3. It is alleged in paragraph 4 of the writ petition that the petitioner was elected as Chairman of Nagar Panchayat, Sahjanwa on 22-11-2000 and it is alleged in paragraph 5 that in this election the petitioner has defeated one Sri Ram Baran Singh who is younger brother of a local B. S. P. M. L. A. Sri Dev Narain Singh. It is alleged in paragraph 6 of the writ petition that on account of the influence of the local M. L. A. certain frivolous complaints and FIR were lodged against the petitioner and the petitioner was released on bail in the case. It is alleged that there was never any criminal case against the petitioner and his false implication in certain cases was due to political rivalry. 4. In paragraph 7 of the writ petition it is alleged that when the petitioner was in Jail an order was passed by the District Magistrate, Gorakhpur under Section 54-A of the U. P. Municipalities Act whereby he appointed S. D. M. , Gorakhpur as the Administrator of the Nagar Panchayat. Section 54-A has been quoted in paragraph 7 of the petition and hence we are not repeating it here. True copy of the order dated 14-5-2003 is Annexure-1 to the writ petition. 5. It is alleged in paragraph 8 of the writ petition that against the order under N. S. A. The petitioner filed a writ petition which has been allowed by the High Court vide Annexure-2 to the writ petition. After being released from Jail the petitioner wrote a letter to the District Magistrate Gorakhpur asking him to recall the order dated 14-5-2003 in view of the fact that the temporary vacancy which had been created on the post of Chairman has come to an end after the petitioner has released from custody and accordingly it was requested that the petitioner be allowed to work as Chairman of the Nagar Panchayat. On this application dated 21-7-2003 the District Magistrate, Gorakhpur directed the S. D. M. , Sahjanwa to submit a report, and the S. D. M. enquired from the S. H. O. Police Station Sahjanwa as to whether the petitioner was wanted to any other criminal case. Photocopy of the petitioners application showing the endorsement of the District Magistrate, Gorakhpur and the S. D. M. , Sahjanwa is Annexure-3 to the writ petition. A report was submitted by the S. H. O. , Police Station Sahjanwa that the petitioner was on bail in all the cases vide Annexure-4 to the writ petition. It is alleged in paragraph 11 of the writ petition that after this report of the S. H. O. a fresh report was called from the S. D. M. and legal opinion was also sought from the D. G. C. , Gorakhpur. However, after receiving this report it is alleged that the District Magistrate is sitting tight over the matter and is not allowing the petitioner to function. Hence this petition. 6. A counter-affidavit has been filed by the Standing Counsel. It is alleged in paragraph 5 of the counter- affidavit that the petitioner was detained under the N. S. A. and apart from that there are as many as six criminal cases against him the details of which are given in paragraph 5 of the counter-affidavit. In some of them charge-sheet has also been submitted. Since the petitioner was involved in so may criminal cases apart from his detention under the N. S. A. he was unable to perform his work and duties of the Chairman of Nagar Panchayat and the post of Vice- Chairman is still lying vacant. Hence the District Magistrate appointed the S. D. M. under Section 54-A and his order is valid. 7. In paragraph 6 of the counter-affidavit it is stated that the respondent No. 4, the S. D. M. , Sahjanwa has submitted reports on 23-7-2003, 26-7-2003 and 4-8-2003 regarding the involvement of the petitioner in the criminal cases on the basis of which the District Magistrate, Gorakhpur by letter dated 16-8-2003 has sought appropriate instructions from the State Government to take action against the petitioner under Section 48 of the U. P. Municipalities Act. True copy of the report and the letter of the District Magistrate is Annexure C. A. 1. 8. True copy of the report and the letter of the District Magistrate is Annexure C. A. 1. 8. In paragraph 9 of the counter-affidavit it is stated that the criminal cases are still pending against the petitioner. In paragraph 13 it is stated that on account of the acts and omission of the petitioner as many as nine buses of the U. P. State Road Transport Corporation were set on fire. Photocopy of the FIR. Is Annexure C. A. 2. 9. We have also perused the rejoinder-affidavit. It has been alleged therein that the petitioner was implicated in criminal cases due to political rivalry. Cross FIRs have also been filed. It is alleged that all the FIRs were actually lodged for political considerations after the petitioner defeated the younger brother of the ruling B. S. P. The petitioner has been bailed out and his detention under the N. S. A. has been quashed but he is not being allowed to work. 10. On the facts and circumstances of the case we are not inclined in exercise our discretion under Article 226 of the Constitution in this case. It is well-settled that writ jurisdiction is discretionary jurisdiction and we are not bound to interfere even if there is violation of law. We are satisfied that this is not a fit case for exercise of our discretion. It is evident from the record that the petitioner has a criminal bent and he is involved in a large number of criminal cases the details of which are given in paragraph 5 of the counter- affidavit. Merely because he has been granted bail it does not mean that he has been acquitted. 11. In Ramniklal N. Bhutta v. State of Maharashtra, 1997 (1) JCLR 306 (SC) : 1997 (1) SCC 134 (vide paragraph 11) the Supreme Court observed : "the power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. . . . . . . . . . . . . . . . The Courts have to weight the public interest vis a vis the private interest while exercising the power under Article 226. " 12. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. . . . . . . . . . . . . . . . The Courts have to weight the public interest vis a vis the private interest while exercising the power under Article 226. " 12. In State of Himachal Pradesh v. Raja Mahendra Pal, 1999 (4) SCC 43 (vide paragraph 6) and in Director of Settlement v. M. R. Apparao, 2002 (4) SCC 638 (vide paragraph 17) the Supreme Court observed that the power vested in the High Court under Article 226 is discretionary. 13. Thus the High Court is not bound to issue a writ even if there is violation of law, because the power under Article 226 is discretionary. In a writ petition the petitioner has not only to show violation of law, he must also show that equity is in his favour. If he only shows violation of law but he does not show that equity is in his favour a writ will not be issued. Hence both law and equity must be in the petitioners favour before a writ is issued. In this case equity is not in the petitioners favour. 14. It is unfortunate that standards of public life have greatly deteriorated in recent years in the country and often persons with criminal antecedents are assuming public office. Unless these tendencies are curbed democracy will be dealt a fatal blow. This Court should not therefore, be a party in helping such people who are stated to be indulging in criminal activities. Criminalization of our politics is the bane of our democracy. 15. We are fortified in the view which we are taking by the recent decisions of the Supreme Court directing that the candidates for election should disclose their criminal antecedents vide Union of India v. Association for Democratic Reforms, 2002 (5) SCC 294 (vide para 19) and P. U. C. L. v. Union of India, 2003 (4) SCC 399. 16. Hence without going into the merits of the case we dismiss the writ petition as we are not inclined to exercise our discretion under Article 226 of the Constitution in this case. Petition dismissed. .