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Allahabad High Court · body

2015 DIGILAW 813 (ALL)

Naimunisha v. State of U. P. Thru. Secy. Nagar Vikas Anubhag

2015-04-15

DINESH MAHESHWARI, RITU RAJ AWASTHI

body2015
JUDGMENT The petitioner, said to be a Member of Nagar Palika Parishad, Sandi, District Hardoi, has filed this writ petition with the allegations that in the resolution as said to have been passed in the meeting of the Parishad on 30.3.2015, she was not present due to illness and yet, the respondent no. 3, the Chairperson, had wrongly shown her presence in the attendance register. The petitioner has submitted that the respondent no. 2, the District Magistrate, is required to carry out inquiry into the matter and has prayed for reliefs that resolution dated 30.03.2015 be cancelled, the meeting be called again, and the respondent no. 2 be directed to hold the necessary inquiry in the following terms: "(i) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties and to direct the opposite parties to call again an open meeting by cancelling the said special resolution which was passed on 30.03.2015 in want of prescribed quorum, because the opposite party no. 3 fraudulently shown the presence of the petitioner on 30.03.2015 in the attendance register, whereas the petitioner has absent on that i.e. dated 30.03.2015 due to her illness as contained in Annexure No. 1 to this writ petition, in the interest of justice. (ii) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties and direct the opposite party no. 2 to make fair and impartial enquiry about the said special resolution which was held on 30.03.2015, in want of prescribed quorum and take appropriate action against the fraudulent and misrepresent acts of opposite party no. 3. (iii) allow the writ petition with costs in favour of the petitioner." 2. The petitioner has suggested in this writ petition that she is an old lady and due to illness, she did not attend the meeting held on 30.03.2015, but her presence has fraudulently been shown in the attendance register. The averments as taken in this regard in paragraph 4 of this petition read as under: "4. That the petitioner further submits that she is an old lady and due to her illness, she was laying on rest bed an she was not present in meeting hall of Nagar Palika Parishad, Sandi on 30.03.2015, due to her illness. However, the opposite party no. That the petitioner further submits that she is an old lady and due to her illness, she was laying on rest bed an she was not present in meeting hall of Nagar Palika Parishad, Sandi on 30.03.2015, due to her illness. However, the opposite party no. 3, fraudulently shown her presence on that day i.e. 30.03.2015 in the presence register for the purpose of passing special resolution." 3. The petitioner has further suggested that when she came to know that her presence had fraudulently been shown, she made a complaint to the respondent no. 2 and requested for convening of the meeting afresh in terms of sub-Section (2) of Section 88 of the Uttar Pradesh Municipalities Act, 1916 ('the Act'). The petitioner, in regard to these averments, has referred to an alleged joint complaint made by several persons, copy whereof is placed on record as Annexure-2 (Page 16 of the paper book). A purported typed copy of this document is placed at Page 17 of the paper book. 4. Upon taking up of this matter and examining the record, we have queried the learned counsel for the petitioner as regards the photostat of the alleged application dated 30.03.2015 which is placed on record as Annexure-2 (Page 16) and its typed copy at Page 17, particularly when the photostat at Page 16 does not show any indication of thumb impression of the petitioner, but her name is mentioned in the typed copy at Page 17. The counsel for the petitioner, in this regard, suggested that this aspect appears to be that of typographical error; and else, has relied upon the photostat, placed on record at Page 16. The counsel has argued that as per Section 88 of the Act, the requisite quorum for such meeting being one half of the Members and such quorum being not present, the respondents are required to convene the meeting again in terms of sub-Section (2) of Section 88 of the Act. 5. Having heard the learned counsel for the petitioner and having perused the record, we are satisfied that different nature propositions on behalf of the petitioner as regards her thumb impression on the attendance register appear to be only of afterthought and in any case, the conduct of the petitioner does not inspire confidence. 6. 5. Having heard the learned counsel for the petitioner and having perused the record, we are satisfied that different nature propositions on behalf of the petitioner as regards her thumb impression on the attendance register appear to be only of afterthought and in any case, the conduct of the petitioner does not inspire confidence. 6. In the first place, it need be noticed that the suggestion as made in this writ petition that the petitioner could not attend the meeting "due to illness" itself appears to be that of afterthought; and only for the purpose of taking averments in the writ petition, because such a suggestion about alleged illness was not made by the petitioner in any of the representations made earlier. Interestingly, in an alleged affidavit dated 30.03.2015, said to be accompanying the petitioner's individual application which is dated "30.03.2015/31.03.2015", the petitioner had only stated that due to certain reasons "( fdlh dkj.ko'k )", she could not attend the meeting. 7. Then, there is a significant variance in the photostat and in the typed copy of the document Annexure-2, said to be a joint application allegedly moved on behalf of 15 persons. In the typed copy (Page 17) the name of petitioner has been mentioned as Member of Ward No. 3 and below her name the date 31.03.2015 is mentioned, though in the body of the application the referred date is 30.03.2015. Interestingly, such name of the petitioner or her thumb impression, do not occur on the photostat of this document which is placed at Page 16 of the paper book. The counsel has, of course, relied upon the photostat (as placed on record at Page 16) and has suggested that there might have been typographical error. The typed copy (Page 17) has several other variations too, but in any case, appearance of the name of the petitioner therein; and then, its date 31.03.2015 give rise to serious doubts about the veracity and correctness of this document. It is also interesting to notice that the photostat which is placed at Page 16 carries the names/signatures of only 11 persons whereas the typed copy contains 15 names. The typed copy of the document is a part of the record and is supposed to be read whenever required by the Court. It is also interesting to notice that the photostat which is placed at Page 16 carries the names/signatures of only 11 persons whereas the typed copy contains 15 names. The typed copy of the document is a part of the record and is supposed to be read whenever required by the Court. The stark differences in the photostat and the typed copy as placed on record at Page 16 and Page 17 make it clear that the petitioner has not been forthright and truthful while making submissions before the Court and presenting this writ petition. 8. Apart from the above, interestingly, even in the said application, there is no suggestion about the alleged illness of the petitioner. Furthermore, there is no allegation in the application about the alleged taking of the thumb impression of the petitioner by the Chairperson under some pretext. 9. Thus, such different, unsure and vacillating stands taken by the petitioner in different applications and then in the pleadings before this Court put a serious question mark over her conduct; and it is but clear that the petitioner is not forthright in her submissions. 10. It needs hardly any emphasis that the writ jurisdiction of this Court being that of discretionary remedy, in the first place requires the writ petitioner to be forthright in his/her submissions before the Court and his/her conduct should not be blameworthy, particularly as regards the factual aspects. 11. In the present matter, apart that we are not satisfied on the conduct of the petitioner where the petitioner has not been forthright and appears to have filed even the documents which tend mislead, the petitioner has even otherwise not taken a categorical stand as regards her presence/absence on 30.03.2015. On such unsure and vacillating stands, no writ order or direction is required to be issued at the instance of the petitioner. 12. In view of what has been observed hereinabove, we are inclined to dismiss this writ petition with costs. 13. The writ petition stands dismissed with costs quantified at Rs. 10,000/-. 14. The amount of cost shall be recovered by the concerned District Magistrate from the petitioner and shall be deposited in the account of the State Legal Services Authority at Lucknow.