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2020 DIGILAW 1214 (ALL)

Mahesh Chandra Bharadwaj v. State Of U. P.

2020-10-12

SURYA PRAKASH KESARWANI, YOGENDRA KUMAR SRIVASTAVA

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JUDGMENT : 1. Heard Sri Ashish Malhotra, learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. The present writ petition has been filed by the petitioner asserting to be an elected member of the Nagar Panchayat, Maswasi, Rampur, seeking a direction for initiation of proceedings for the removal of respondent no.2 from the office of the President of Nagar Panchayat and for initiating recovery proceedings against the said respondent. 3. It is sought to be contended that certain complaints had been made by the petitioner against respondent no.2 relating to award of some contracts and also with regard to some other alleged financial irregularities regarding which a report is also stated to have been submitted by respondent no.4. 4. Learned Standing Counsel appearing for the State respondents has pointed out that for the purposes of removal of an elected President, a complete procedure has been prescribed under the Uttar Pradesh Municipalities Act, 1916, (the Act, 1916) as per terms of the provisions under Section 48 thereof, and in view of the aforesaid, the writ petition filed by the petitioner, who is an elected member of the Nagar Panchayat, seeking removal of respondent no.2 from the office of the President of Nagar Panchayat and initiating proceedings for recovery against the said respondent, would not be maintainable. 5. In order to appreciate the rival contentions, the relevant provisions under law may be adverted to. 6. Part IX-A of the Constitution of India (the Constitution) relating to Municipalities was inserted by the Constitution (74th Amendment) Act, 1992 for establishment of the Municipalities with a view to provide for setting up of democratic institutions at the grass-root level. The object of introducing Part IX-A in the Constitution was that in many states the local bodies were not working properly and the timely elections were not being held and the nominated bodies were continuing for long periods. Elections had been irregular and many times unnecessarily delayed or postponed and the elected bodies had been superseded or suspended without adequate justification. The new provisions were added in the Constitution with a view to restore the rightful place of local bodies in political governance. It was considered necessary to provide a constitutional status to such bodies to ensure the regular and fair conduct of elections. 7. The new provisions were added in the Constitution with a view to restore the rightful place of local bodies in political governance. It was considered necessary to provide a constitutional status to such bodies to ensure the regular and fair conduct of elections. 7. The object and purpose of the aforesaid Part IX-A of the Consitution was explained in Bondu Ramaswamy and others vs. Bangalore Development Authority, (2010) 7 SCC 129 and it was stated as follows : "44. Provisions relating to composition of municipalities, constitution and composition of Ward Committees, reservation of seats for weaker sections, duration of municipalities, powers, authority, responsibilities of municipalities, power to impose taxes, proper superintendence and centralised control of elections to municipalities, constitution of committees for district planning and metropolitan planning, were either not in existence or were found to be inadequate or defective in the State laws relating to municipalities. 45. Part IX-A seeks to strengthen the democratic political governance at grass root level in urban areas by providing constitutional status to municipalities, and by laying down minimum uniform norms and by ensuring regular and fair conduct of elections. When Part IX-A came into force, the provisions of the existing laws relating to municipalities which were inconsistent with or contrary to the provisions of Part IX-A would have ceased to apply. To provide continuity for some time and an opportunity to the State Governments concerned to bring the respective enactments relating to municipalities in consonance with the provisions of Part IX-A in the meanwhile, Article 243-ZF was inserted. The object was not to invalidate any law relating to city improvement trusts or Development Authorities which operate with reference to specific and specialised field of planned development of cities by forming layouts and making available plots/houses/apartments to the members of the public." 8. The 74th Amendment Act, 1992 was brought into strengthen the system of municipal bodies in urban areas with an idea to place the local self-government in urban areas on a sound footing. As per the 73rd and the 74th Amendments, the Panchayats and the Municipalities as institutions of local self-government, have been given a constitutional status with their role and position defined by the Constitution as also their powers, duties and responsibilities. As per the 73rd and the 74th Amendments, the Panchayats and the Municipalities as institutions of local self-government, have been given a constitutional status with their role and position defined by the Constitution as also their powers, duties and responsibilities. These institutions of self governance are no longer mere administrative agencies of the State but have been conferred with a degree of autonomy to ensure that democracy finds expression at the grass-root level. Both the 73rd and 74th Amendments represent measures for decentralisation of power and greater participation of people in self-rule with a view to provide for democratic governance at the grass-root level through these institutions. 9. The manner and extent of control which the agencies of the State exercise over these institutions of local self-government and the necessity to interpret the relevant statutory provisions in a manner that fosters the attainment of Constitutional objectives was underlined by a Full Bench of this Court in Paras Jain vs. State of U.P. and others, 2016 (1) ADJ (1) (FB) and it was held as follows : "15. The extent of control which the agencies of the State exercise over these institutions of local self-government must necessarily conform to constitutional standards. State legislation of a regulatory nature must be interpreted in a manner that fosters the attainment of constitutional objectives. The Court, consistent with the high constitutional purpose underlying Parts IX and IX-A of the Constitution, must give expression to the autonomy expected to be wielded by the constitutionally recognized levels of local self-government. Hence, while interpreting state legislation, the need to conform to constitutional parameters must be borne in mind. An interpretation of state legislation which will dilute the autonomy of institutions of local self-government must, to the extent possible, be avoided. Similarly, an interpretation which would result in reducing the panchayats and municipalities to a role of administrative subordination must be eschewed. Consequently, where an issue arises in regard to the removal of an elected head of a municipality, as in the present case, the procedure prescribed by the law must be followed. The law itself must be interpreted in a manner that would render it fair, just and reasonable in its operation and effect. Consequently, where an issue arises in regard to the removal of an elected head of a municipality, as in the present case, the procedure prescribed by the law must be followed. The law itself must be interpreted in a manner that would render it fair, just and reasonable in its operation and effect. Moreover, in areas where the law is silent, an effort must be made by the Court in the process of interpretation to ensure that the procedure for removal is just, fair and reasonable to be consistent with the mandate of Article 14." 10. The removal from office of elected office bearers on grounds of misconduct in the context of the Constitutional status conferred by the 74th Amendment Act, 1992 was the subject matter of consideration in Ravi Yashwant Bhoir vs. District Collector, Raigad and others, (2012) 4 SCC 407 and it was held that an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law by the State by adopting a casual approach. The observations made in the judgment in this regard are being extracted below : "21. The municipalities have been conferred Constitutional status by amending the Constitution vide 74th Amendment Act, 1992 w.e.f. 1.6.1993. The municipalities have also been conferred various powers under Article 243B of the Constitution. 22. Amendment in the Constitution by adding Parts IX and IX-A confers upon the local self-government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic setup of this country. Therefore, an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of the provisions of Article 21 of the Constitution, by the State by adopting a casual approach and resorting to manipulations to achieve ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the Institution. 23.The democratic setup of the country has always been recognized as a basic feature of the Constitution, like other features e.g. supremacy of the Constitution, rule of law, principle of separation of powers, power of judicial review under Articles 32, 226 and 227 of the Constitution etc. 23.The democratic setup of the country has always been recognized as a basic feature of the Constitution, like other features e.g. supremacy of the Constitution, rule of law, principle of separation of powers, power of judicial review under Articles 32, 226 and 227 of the Constitution etc. (Vide: Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 , Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 , Union of India v. Assn. for Democratic Reforms, AIR 2002 SC 2112 ; Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter), AIR 2003 SC 87 ; and Kuldip Nayar v. Union of India, AIR 2006 SC 3127 )." 11. Referring to the Constitution Bench judgments in Bachhittar Singh vs. State of Punjab and another, AIR 1963 SC 395 and Union of India vs. H.C. Goel, AIR 1964 SC 364 and also Indian National Congress (I) vs. Institute of Social Welfare and others, (2002) 5 SCC 685 the settled legal position that removal of a duly elected member on the basis of proved misconduct is a quasi judicial proceeding, was reiterated. 12. In a case relating to the removal of a President of a Municipal Council under the Punjab Municipal Act, 1911, in Tarlochan Dev Sharma vs. State of Punjab and others, (2001) 6 SCC 260 , it was held that removal from an elected office is a serious matter and that a case for removal must clearly be made out before action could be justified. The right of a duly returned candidate holding and enjoying an office and discharging related duties was held to be a valuable statutory right and in view thereof, it was stated that since an order of removal has the effect of curtailing the term of an elected office holder and casting a stigma upon him, the grounds under the relevant statutory provision for removal must be clearly made out before any such order is passed. The relevant observations made in this regard are as follows : “7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. The relevant observations made in this regard are as follows : “7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of “abuse of his powers” (of President), inter alia. This is the phrase with which we are concerned in the present case.” 13. Taking a similar view in Sharda Kailash Mittal vs. State of Madhya Pradesh and others, (2010) 2 SCC 319 , it was reiterated that removal of a holder from a democratically elected office is an extreme step which must be resorted to only in grave and exceptional circumstances and not for minor irregularities in discharge of duties. It was observed thus : “26. There are no sufficient guidelines in the provisions of Section 41A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation.” 14. The decisions referred to above have laid emphasis on the importance of the role and position of elected office bearers under Part IX-A of the Constitution. It has been consistently held that these elected office bearers represent the will of the electorate and their removal affects the rights of the electorate to be governed by their elected representatives. 15. An elected office bearer under Part IX-A of the Constitution, in our considered view, is accountable to the electorate and his removal has repercussions which are of a serious and adverse nature. The right to hold the post or office is undoubtedly in terms of the statutory enactment and proceedings for removal may also be initiated but only after adhering strictly with the provisions laid down by the legislature for the purpose. 16. In the case of an elected President under the Act, 1916, the procedure for removal of a President is provided for under Section 48 of the Act, 1916 and consequently whenever an issue arises with regard to removal of the President, the procedure prescribed under the statutory provision is required to be strictly followed. 17. Learned counsel for the petitioner has not been able to dispute the aforesaid legal position that the procedure for removal of an elected President of Nagar Panchayat is to be in accord with the provisions of Section 48 of the Act,1916. 18. Having regard to aforesaid, we are not inclined to entertain the present writ petition for the reliefs prayed for, and the writ petition accordingly stands dismissed. 19. It would be open to the petitioner to pursue the remedies as may be available to him in accordance with the statutory provisions in terms of the Act, 1916.