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2021 DIGILAW 96 (ALL)

Jagdish Prasad Gupta v. State Of U. P.

2021-01-19

PANKAJ NAQVI, PIYUSH AGRAWAL

body2021
JUDGMENT 1. Heard Shri Anoop Trivedi, learned Senior Advocate, assisted by Shri Nitin Chandra Mishra, for the petitioner, learned Standing Counsel for the State -respondents and Shri Vinod Kumar Sahu for respondent no. 4. 2. The petitioner was elected as Chairman, Nagar Palika Parishad, Banda (for short, 'the Parishad') on 01.12.2017. A complaint was made against the petitioner and Executive Officer of the Parishad, alleging irregularities and defalcation of accounts before the District Magistrate, Banda/respondent no. 3, who forwarded the same to the Commissioner of the Division/respondent no. 2. The Commissioner on 12.06.2019 constituted a three-member Committee to inquire into the allegations. The Committee comprised of Assistant Accounts Officer, Sub-Divisional Officer, Sadar and Joint Development Commissioner. The Committee submitted its report dated 06.08.2019 (first report) to the Commissioner. It appears that in the meanwhile, another complaint was preferred against the petitioner before the Commissioner, who took cognizance of the same and referred the same to a single member committee, comprising of Joint Development Commissioner, who was the Chairman of the earlier Committee. The Joint Development Commissioner submitted a report (second report) dated 21.10.2019 on 15 charges to the Commissioner and the latter forwarded the same to the State Government vide letter dated 23.10.2019. The State Government acting under section 48 of the Uttar Pradesh Municipalities Act, 1916 (for short, 'the Act') issued a show cause on 9 charges on 11.02.2020, served on the petitioner on 07.06.2020. The petitioner submitted his reply on 12.06.2020. The State Government under section 48(2) of the Act, after consideration of the reply, proceeded to cease the administrative/financial power of the petitioner on 29.10.2020 and a consequential order dated 30.10.2020 by the District Magistrate appointing Deputy Collector as administrator in the Parishad. 3. Learned Senior Counsel for the petitioner broadly raised three contentions:- (i) The petitioner was not afforded any opportunity by both the Committees, depriving him of a valuable right to contest the allegations; (ii) failure to furnish the first report dated 06.08.2019 to the State Government has occasioned prejudice to the petitioner; and (iii) impugned order is based on non-application of mind as there is no consideration of the reply of the petitioner. 4. Learned Standing Counsel opposed the submission. 5. Section 48 of the Act reads as under:- "48. Removal of President. 4. Learned Standing Counsel opposed the submission. 5. Section 48 of the Act reads as under:- "48. Removal of President. (1) … (2) Where the State Government has, at any time, reason to believe that,- (a) there has been a failure on the part of the President in performing his duties; or (b) the President has - (i) incurred any of the disqualifications mentioned in Sections 12-D and 43-AA; or (ii) within the meaning of Section 82 knowingly acquired or continued to have, directly or indirectly or by a partner, any share or interest, whether pecuniary or of any other nature, in any contract or employment with by or on behalf of the [Municipality]; or (iii) knowingly acted as a President or as a member in a matter other than a matter referred to in clauses (a) to (g) of subsection (2) of Section 32, in which he has, directly or indirectly or by a partner, any share or interest whether pecuniary or of any other nature, or in which he was professionally interested on behalf of a client, principal or other person; or (iv) being a legal practitioner acted or appeared in any suit or other proceeding on behalf of any person against the [Municipality] or against the State Government in respect of nazul land entrusted to the management of the [Municipality] or against the State Government in respect of nazul land entrusted to the management of the [Municipality], or acted or appeared for or on behalf of any person against whom a criminal proceeding has been instituted by or on behalf of the [Municipality]; or (v) abandoned his ordinary place of residence in the municipal area concerned; or (vi) been guilty of misconduct in the discharge of his duties; or (vii) during the current or the last preceding term of the Municipality, acting as President or as Chairman of a Committee, or as member or in any other capacity whatsoever, whether before or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976, so flagrantly abused his position, or so wilfully contravened any of the provisions of this Act or any rule, regulation or bye-law, or caused such loss of damage to fund or property of the [Municipality] as to render him unfit to continue to be President; or (viii) been guilty of any other misconduct whether committed before or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976 whether as President or as [* * *], exercising the powers of President, or as [* * *], or as member; or (ix) caused loss or damage to any property of the municipality; or (x) misappropriated or misused of Municipal found; or (xi) acted against the interest of the municipality; or (xii) contravened the provisions of this Act or the rules made thereunder; or (xiii) created an obstacle in a meeting of the municipality in such manner that it becomes impossible for the municipality to conduct its business in the meeting or instigated someone to do so; or (xiv) wilfully contravened any order or direction of the State Government given under this Act; or (xv) misbehaved without any lawful justification with the officers or employees of the municipality; or (xvi) disposed of any property belonging to the municipality at a price less than its market value; or (xvii) encroached, or assisted or instigated any other person to encroach upon the land, building or any other immovable property of the municipality; it may call upon him to show cause within the time to be specified in the notice why he should not be removed from office. [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]. [* * *] [* * *] [(2B) An order passed by the State Government under sub-section (2-A) shall be final and shall not be questioned in any Court. (3) [* * *] (4) A President removed under sub-section (2-A) shall also cease to be a member of the] [Municipality] and in case of removal on any of the grounds mentioned in clause (a) or sub-clause (vi), (vii) or (viii) of clause (b) of subsection (2) shall not be eligible for re-election as President or member for a period of five years from the date of his removal." 6. The scope of above provision came to be examined by a Full Bench of this Court in Hafiz Ataullah Ansari Vs. State of U.P. & Others [ 2011 (3) ADJ 502 ]; wherein, it held as under:- "133. The scope of above provision came to be examined by a Full Bench of this Court in Hafiz Ataullah Ansari Vs. State of U.P. & Others [ 2011 (3) ADJ 502 ]; wherein, it held as under:- "133. Our conclusions are as follows: (a)There can be proceeding for removal of president under section 48(2) of the Municipalities Act without ceasing his financial and administrative power under its proviso; (b)The following conditions must be satisfied before cessation of financial and administrative powers of a president of a Municipality can take place: (i) The explanation or point of view or the version of the affected president should be obtained regarding charges and should be considered before recording satisfaction and issuing notice/ order under proviso to section 48(2) of the Municipalities Act; (ii) The State government should be objectively satisfied on the basis of relevant material that: The allegations do not appear to be groundless; and The president is prima facie guilty of any of the grounds under section 48(2) of the Municipalities Act. (iii) The show cause notice must contain the charges against the president; (iv) The show cause notice should also indicate the material on which the objective satisfaction for reason to believe is based as well as the evidence by which charges against the president are to be proved. Though in most of the cases they may be the same; (c)It is not necessary to pass separate order under proviso to section 48(2) of the Municipalities Act. It could be included in the notice satisfying the other conditions under proviso to section 48(2). In fact it is not even necessary. It comes into operation by the Statute itself on issuance of a valid notice under proviso to section 48(2) of the Municipalities Act. (d)In case a notice/ order ceasing financial and administrative powers is held to be invalid on any ground then this does not mean that the proceeding of removal are also invalid. They have to continue and taken to their logical end. The proceeding to remove can come to an end only if the charges on the their face or even taken to be proved do not make out a case for removal under section 48(2) of the Municipalities Act. They have to continue and taken to their logical end. The proceeding to remove can come to an end only if the charges on the their face or even taken to be proved do not make out a case for removal under section 48(2) of the Municipalities Act. (e)It is not necessary to involve the president with the process of collecting material or give president the copies of the material before asking his explanation or point of view or version of the president to the charges. (f)In the present case, the impugned notice/ order cannot be invalidated on the following ground that: (i)The explanation or point of view of the petitioner to the charge was not obtained (as it was asked). However, we have not considered, whether his explanation was considered or not; (ii)The letters of the SDM and DM were not given to the petitioner before obtaining petitioner's explanation or his point of view to the charges as this was unnecessary at that stage. In case these copies were not given along with show cause notice by the State government, it is open to the petitioner to ask for the same and then file an additional reply." 7. A perusal of the above legal position would indicate that a power is conferred upon the State Government to cease the administrative/financial power under section 48(2) of the Act and the requirement of law is that the person concerned must be confronted with show cause containing charges, so as to enable him to respond. It is only after receipt of the reply that State Government can pass an order ceasing the administrative/financial power of the Chairman. The object of this provision is only to enable the State Government to take a decision on the available materials as to whether facts of the case warrant urgent invocation of ceasing of administrative/financial power. At this stage, the State Government is to only prima facie record its satisfaction as to whether administrative/financial power is to be ceased or not. 8. In this view of the matter, the contention of the petitioner that he was not permitted to participate before the inquiry committee is of no avail. 9. We carefully examined the contents of both the reports, the show cause and the impugned order and find no merit in the second contention. 8. In this view of the matter, the contention of the petitioner that he was not permitted to participate before the inquiry committee is of no avail. 9. We carefully examined the contents of both the reports, the show cause and the impugned order and find no merit in the second contention. The reason is that the first report alleged five charges and the second report alleged 15 charges. To recapitulate the report is by a three-member committee, of which Joint Development Commissioner was the Chairman and the second report is by a single-member, i.e., the same Joint Development Commissioner. The Joint Development Commissioner was fully aware of the contents of the first report as he was a Chairman and in the second report, there is a recital that same charges have already been inquired into the first report. Thus, non-supply of the first report cannot be said to have occasioned any prejudice to the petitioner. 10. The Commissioner was not obliged to send the first report (three member) to the State Government for the simple reason that the Joint Development Commissioner was the Chairman in both the Committees and while sending the second report dated 21.10.2019, he was aware of contents of the first report. The matter can be viewed from another perspective also. The petitioner was put to show cause on certain charges to which he, admittedly, responded. If the State has chosen not to rely on the first report dated 06.08.2019, then how can the petitioner insist that show cause must be issued on the basis of first report? 11. We, in view of above factual/legal position, are not impressed with the plea that the impugned order suffers from the vice of non-application of mind. 12. Admittedly, inquiry proceedings are pending. The pending inquiry before the State Government is directed to be concluded as expeditiously as possible, preferably, within six weeks from the date a copy of this order is produced before it. 13. The writ petition is dismissed, subject to above observations.