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2017 DIGILAW 634 (UTT)

JUMMA BHARTI v. STATE OF UTTARAKHAND

2017-11-29

MANOJ K.TIWARI

body2017
JUDGMENT Hon'ble Manoj K. Tiwari, J. (Oral) 1. By means of this writ petition, following reliefs have been sought by the petitioner:- (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 03.11.2017 passed by respondent no. 1 (Annexure No. 10), whereby the financial and administrative power of the petitioner has been ceased. (ii) Issue a writ order or direction in the nature of mandamus directing the respondent no. 1 to restore back the financial and administrative power of the petitioner forthwith. 2. In the year 2013, petitioner was elected as President of Nagar Panchayat Sultanpur, District Udham Singh Nagar for a term of five years. It appears that one Sri Haji Ali Husain (respondent No. 5) made a complaint that petitioner has committed financial irregularities, on which preliminary enquiry was held by Sub-Divisional Magistrate, Khatima, District Udham Singh Nagar. Thereafter, District Magistrate, Udham Singh Nagar submitted the preliminary enquiry report to the State Government on 30.09.2015. State Government subsequently issued show cause notice to the petitioner on 21.12.2015, which was duly replied by him on 07.01.2016. The State Government has now passed an order on 03.11.2017, whereby administrative and financial powers of the petitioner, as President of Nagar Panchayat, have been suspended till further orders. This order dated 03.11.2017 is under challenge in the writ petition. 3. The principal ground of challenge is that in the absence of any statutory provision to suspend administrative and financial powers of a President, an elected President cannot be restrained from exercising administrative and financial powers. 4. On 28.11.2017, Mr. N.S. Pundir, learned Deputy Advocate General representing the State Government sought time to seek instructions in the matter. On instructions, Mr. Pundir informs the Court that there is no provision in the Municipalities Act, 1916 providing for suspension of administrative and financial powers of an elected President. Mr. Pundir seeks to draw support from proviso to Section 48(2) of the Act inserted by State of Uttar Pradesh vide U.P. Act No. 2 of 2005. Since legislature of State of Uttar Pradesh made the said amendment after State re-organisation and the said amendment is effective from 27.02.2004, therefore, it has no application to State of Uttarakhand. Mr. Pundir seeks to draw support from proviso to Section 48(2) of the Act inserted by State of Uttar Pradesh vide U.P. Act No. 2 of 2005. Since legislature of State of Uttar Pradesh made the said amendment after State re-organisation and the said amendment is effective from 27.02.2004, therefore, it has no application to State of Uttarakhand. Nevertheless, the proviso added by State of Uttar Pradesh in Section 48(2) of the Municipalities Act, 1916 vide U.P. Act No. 2 of 2005 is extracted below:- “Provided that where the State Government has reason to believe that the allegations do not appear to be groundless and the President is prima facie guilty on any of the grounds of this sub-section resulting in the issuance of the show-cause notice and proceedings under this sub-section he shall, from the date of issuance of the show-cause notice containing charges, cease to exercise, perform and discharge the financial and administrative powers, functions and duties of the President until he is exonerated of the charges mentioned in the show-cause notice issued to him under this sub-section and finalization of the proceedings under sub-section (2-A) and the said powers, functions and duties of the President during the period of such ceasing, shall be exercised, performed and discharged by the District Magistrate or an officer nominated by him not below the rank of Deputy Collector." 5. Municipalities have now been conferred Constitutional status and provision therefor have been made in Part IXA of the Constitution of India. In the absence of any express provision for suspension of administrative and financial powers of an elected President, no order for suspending administrative and financial powers can be passed against him. 6. In view of the admitted position that there is no such power available to the State Government under Municipalities Act, 1916, as applicable in State of Uttarakhand, the impugned order passed by the State Government, cannot be sustained in the eyes of law. The impugned order dated 03.11.2017 is liable to be quashed and is hereby quashed. 7. Accordingly, the writ petition is allowed. 8. However, it shall be open to the State Government to bring the enquiry pending against the petitioner to its logical end and pass appropriate order, in accordance with law, after hearing him.