Back
IN THE HIGH COURT OF ALLAHABAD
B. S. Chauhan and R. C. Pandey, JJ.
UMESH BAIJAL - Appellant
Versus
STATE OF U. P. - Respondents
C. M. W. P. 39882 Of 2003
Decided On : 12/11/2003
MUNICIPALITIES - REMOVAL OF CHAIRMAN - U. P. MUNICIPALITIES ACT, 1916 - SECTION 48 - PRINCIPLES OF NATURAL JUSTICE - REQUIREMENT OF FULLEDGED ENQUIRY - SCOPE AND APPLICATION - CIRCUMSTANCES WHERE ENQUIRY IS NECESSARY - PROCEDURE TO BE FOLLOWED - POWER OF COURT TO ISSUE DIRECTIONS TO LEGISLATURE TO ENACT LEGISLATION - EXTENT AND LIMITATIONS.
Fact of the Case:
Petitioners, duly elected members of Nagar Palika, Shikohabad, filed a writ petition seeking a direction to the respondent to initiate proceedings under Section 48 of the U. P. Municipalities Act for removing the respondent, the President/chairman, Nagar Palika Parishad, Shikohabad, District Firozabad. The petitioners alleged financial irregularities/embezzlement by the respondent while granting the contract of collection of Tehbazari.
Finding of the Court:
1. Removal of a duly elected Chairman is a serious matter and must be done only for clear-cut reasons, as holding and enjoying an office and discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. 2. The grounds for removal under Section 48 of the Act must be strictly adhered to, and unless a clear case is made out, there can be no justification for removal. 3. The authority considering removal must not be guided by any extraneous consideration or political pressure. 4. Depending on the facts and circumstances of the case, an enquiry should be held complying with the principles of natural justice, giving an opportunity of defence to the erring elected officebearer. 5. The State Government must pass a speaking and reasoned order considering the explanation of the elected office bearer. 6. In cases where the allegations are serious and require proof on documentary and oral evidence, a fulfledged enquiry is desirable. 7. The requirement of a fulfledged enquiry depends on the facts of each case and cannot be determined by a strait-jacket formula. 8. In the present case, as an enquiry has been initiated by the District Collector and the Lokayukt of Uttar Pradesh, the Court directed the authorities to conclude the enquiry expeditiously. 9. The Court declined to issue a direction to the respondent to hold an enquiry under Section 48 of the Act, considering the ongoing enquiries by the statutory authorities. 10. The Court clarified that it cannot legislate or issue directions to the Legislature to enact legislation in a particular manner.
Issues: 1. Whether a fulfledged enquiry is required before removing an elected Chairman under Section 48 of the U. P. Municipalities Act, 1916? 2. What are the principles of natural justice that must be followed in such an enquiry? 3. Can the Court issue directions to the Legislature to enact legislation in a particular manner?
Ratio Decidendi: 1. The removal of an elected Chairman is a serious matter and must be done only for clear-cut reasons, as holding and enjoying an office and discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. 2. The grounds for removal under Section 48 of the Act must be strictly adhered to, and unless a clear case is made out, there can be no justification for removal. 3. The authority considering removal must not be guided by any extraneous consideration or political pressure. 4. Depending on the facts and circumstances of the case, an enquiry should be held complying with the principles of natural justice, giving an opportunity of defence to the erring elected officebearer. 5. The State Government must pass a speaking and reasoned order considering the explanation of the elected office bearer. 6. In cases where the allegations are serious and require proof on documentary and oral evidence, a fulfledged enquiry is desirable. 7. The requirement of a fulfledged enquiry depends on the facts of each case and cannot be determined by a strait-jacket formula. 8. The Court cannot legislate or issue directions to the Legislature to enact legislation in a particular manner.
Final Decision: The Court declined to issue a direction to the respondent to hold an enquiry under Section 48 of the Act, considering the ongoing enquiries by the statutory authorities.
( 1 ) THIS writ petition has been filed seeking direction to the respondent No. 1 to initiate proceedings under Section 48 of the U. P. Municipalities Act for removing the respondent No. 2, the President/chairman, Nagar Palika Parishad, Shikohabad, District Firozabad.
( 2 ) FACTS and circumstances giving rise to this case are that the respondent No. 2 is duly elected chairman of the aforesaid Nagar Palika. The petitioners are duly elected members of the same palika. They have made certain allegations against the respondent No. 2, which are of the nature of financial irregularities/embezzlement while granting the contract of collection of Tehbazari granted to one Shri Raj Kumar. The said Tehbazari was collected by his employees but not deposited in the treasury for the period between 23. 5. 2002 to 12. 7. 2002. The contractor Shri Raj kumar collected the amount of Rs. 1,28,336 but he deposited a sum of Rs. 76,465 only. Certain affidavits had been filed by the members before the respondent No. 1 and representations had been made to the District Collector regarding many other irregularities including also not passing of the budget. Complaints are also for forging and fabricating the record of the meetings, contravention of the orders passed by the District Magistrate, the defalcation of funds, shielding the misdeeds of Junior Engineers, non-payment of salaries/ wages of the sweepers. Petitioners submit that in spite of making large number of representations, no action has been taken by the respondent No. 1 against the respondent No. 2. Hence this petition.
( 3 ) SHRI Tejpal, learned counsel appearing for the petitioners has submitted that in spite of large number of representations/complaints made to the District Collector as well as to the respondent no. 1, no action has been taken against the respondent No. 2 and, therefore, this Court must issue direction to the respondent No. 1 to give a show cause notice in respect of the aforesaid charges and ask the respondent No. 2 to furnish the explanation and then to pass appropriate order.
( 4 ) SHRI Awadhesh Prasad, learned counsel appearing for the respondent No. 2 has submitted that a duly elected Chairman of Nagar Palika cannot be removed so unceremoniously merely by issuing a show cause notice and asking him to furnish the explanation of the same and unless a fulfledged enquiry is held and he is given an opportunity to defend himself properly, examining and cross-examining the witnesses in a fulfledged enquiry, the question of removal does not arise. On one hand, the State Government came with an amendment in the U. P. Municipalities act, 1916, hereinafter called the "act 1916" deleting the provisions of Section 87a which was meant for removal of the Chairman by no-confidence motion on the ground that he could not be removed by a few elected members by moving a no-confidence as he had been elected by the voters of the entire city within the territorial jurisdiction of the Municipal Board. On the other hand, the Chairmen, are being removed merely by giving a show cause notice and asking him to furnish an explanation. Therefore, this kind of direction cannot be issued for removal of the duly elected Chairman. An enquiry should be held by some higher authority like a District Judge who is beyond the control and supervision of the State authorities and all opportunities of defence should be made available to the Chairman sought to be removed. More so, in this case, as the lokayukt and the District Magistrate, on complaints of the petitioners, have already taken cognizance and inquiries are held, the Court may not issue any direction at this stage and petition be dismissed at the threshold.
( 5 ) SHRI Noorul Huda, learned standing counsel appearing for the respondent No. 1 submitted that the issues involved in this petition are purely legal and as there is no order of removal, at this stage, the counter-affidavit is not required by either of the respondents and the m
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
