SHAMA ALI Vs. STATE OF U P

JUDGEMENT

(1.) By this writ petition the Petitioner, who was elected President of Nagar Palika Parishad, Sahaswan, Budaun, has challenged the order dated 8.5.2009 passed by the Respondent No. 1 removing the Petitioner from the office of President exercising power under Section 48(2-A) of the U.P. Municipalities Act, 1916 (hereinafter referred to as the 'Act').

(2.) Affidavits between the parties have been exchanged. The writ petition is being finally decided.

(3.) Brief facts of the matter are that the Petitioner was elected President of Nagar Palika Parishad, Sahaswan, Budaun on 15.11.2006 for a term of 5 years which was to end on 15.11.2011. She had been discharging her functions honestly and to the best of her abilities. The local M.L.A. of the ruling party had contested the assembly election against the son of the Petitioner and could win the election by a very narrow margin and as such had animosity with the Petitioner. A complaint by some Corporators at the instigation of local M.L.A. was made to the District Magistrate against the Petitioner. The District Magistrate on 23.6.2008 ordered an enquiry to be conducted by the A.D.M. Copy of the undated complaint is annexure-5 to the writ petition. It has been contended that certain baseless and false allegations were made against the Petitioner regarding alleged irregularities in the functioning of the Petitioner. After the complaint was made the local M.L.A. exerted pressure upon the District Magistrate, who without any order of Respondent No. 1 for holding inquiry and without adopting due procedure and even without waiting for the enquiry to be completed sent a report to the State Government on 31.7.2008 recommending action against the Petitioner under Section 48 of the Act. It is also alleged that since the enquiry report of the District Magistrate had no substance, therefore, the State Government did not take any action on the basis of the report, however, the said local ruling party M.L.A. on 4.9.2008 wrote a letter to Minister, Urban Development, Govt. of U.P. urging the Minister that financial power of the Petitioner may be ceased. The Minister on the very next day i.e. 05.09.2008 directed the Principal Secretary, Urban Development to take appropriate action and as a consequence thereof a show cause notice dated 11.9.2008 was served upon the Petitioner demanding explanation within 15 days and also ceasing the administrative and financial powers of the Petitioner till she was exonerated from the charges. Copy of the letter of the local M.L.A. dated 4.9.2008 is annexure No. 6 to the writ petition. On receipt of the show cause notice a detailed explanation was duly submitted by the Petitioner on 4.10.2008, copy of which is annexure no. 3 to the writ petition. The show cause notice dated 11.9.2008 was challenged by the Petitioner in Civil Misc. Writ Petition No. 50344 of 2008 which was dismissed vide order dated 24.9.2008 with a direction to Respondent No. 1 to conclude the enquiry proceedings against the Petitioner within a period of three months and pass an appropriate order. The certified copy of the order of the High Court dated 24.9.2008 was served by the Petitioner to the Respondent No. 1 along with his explanation dated 4.10.2008. The enquiry, as ordered by the court, was not completed within the prescribed period. Thereafter, contempt application No. 928 of 2009 was filed by the Petitioner in which a notice was issued to Respondent No. 4 herein i.e. Principal Secretary, Urban Development. Due to declaration of parliamentary elections the enquiry was not proceeded with for sometime as the code of conduct was applicable. The opportunity of hearing granted to the Petitioner was postponed vide letter of Joint Secretary, Urban Development till the notification of election code of conduct. Copy of the communication by the Joint Secretary, Urban Development is annexure No. 16 to the writ petition. It is also contended that the Petitioner was never called by Respondent No. 1 for hearing before passing the impugned order dated 8.5.2009 which was alleged to have been passed while the election code of conduct was continuing. Vide impugned order dated 8.5.2009 the Petitioner was removed from her office. The instant writ petition has been filed challenging the said order.