ABDUL AZIZ ANSARI Vs. STATE OF U P

JUDGEMENT

(1.) The Petitioner was elected as President of Nagar Palika Parishad, Kairana, Muzaffar Nagar and took charge of the said office on 16.11.2006. The term of office of the Petitioner is five years. In the preceding five years term also, the Petitioner was elected and functioned as President of Nagar Palika Parishad. On 20.1.2009, a complaint was lodged by the two members of the Nagar Palika Parishad, which related to the business of the Parishad conducted during the term prior to 2006 as well as for the current term. On 27.8.2009, the Petitioner was issued a show cause notice by the State Government as to why the Petitioner may not be removed from the office of the President under Sections 48(2)(a) and (b)(vi)(xi)(xiv) of the Municipalities Act, 1916 (hereinafter referred to as the 'Act'). By the said order itself, the financial and administrative powers of the Petitioner were ceased under the proviso to Section 48 of the Act. The Petitioner thereafter submitted his detailed pointwise reply to the Respondent No. 1 on 11.9.2009. Since no order was passed, the Petitioner filed a writ petition No. 48338 of 2009 challenging the ceasure of his financial and administrative powers. By order dated 4.2.2010 passed in the aforesaid writ petition, the order ceasing the financial and administrative powers of the Petitioner vide order dated 27.8.2009 had been stayed by this Court but it was provided that the enquiry may proceed. Challenging the said interim order, the State Government filed a Special Leave Petition No. 17031 of 2010 in which no interim order was granted and subsequently the special leave petition was dismissed by the Apex Court. It was only on 23.6.2010 that the financial and administrative powers of the Petitioner were restored. Since further proceedings in pursuance of the notice were not stayed, on 28.12.2010 the Petitioner was given an opportunity of hearing by the Respondent No. 1, on which date the Petitioner also filed his written submissions. Then by order dated 27.1.2011 passed by the Respondent No. 1 (State of UP through Principal Secretary, Nagar Vikas, Lucknow), the Petitioner has been removed from the office of the President of Nagar Palika Parishad, Kairana, Muzaffar Nagar. Challenging the said order, this writ petition has been filed.

(2.) We have heard Sri P.N. Saxena, learned Senior Counsel assisted by Sri Amit Saxena, learned Counsel appearing for the Petitioner as well as learned Standing Counsel appearing for the Respondents and have perused the averments made in the writ petition as well the counter-affidavit filed by the Respondents.

(3.) The submission of learned Counsel for the Petitioner is that the impugned order has been passed under Section 48(2)(a) of the Act, which gives the power to the State Government to remove the President only if there has been a failure on the part of the President in performing his duties. It is contended that the charges levelled against the Petitioner cannot be termed as failure on the part of the President in performing his duties, which is the ground for removing of the Petitioner. The charges can be divided in two sets, one which relates to fixation of annual rent of five houses and land, which was fixed at less than rental value, and the other regarding transfer of tenancy rights of nine shops, out of which eight shops were transferred in the preceding term which ended in 2006, and only one with regard to the current term, for which explanation had been given by the Petitioner in his detailed pointwise reply running in over 15 pages. Learned Counsel for the Petitioner has vehemently argued that though show-cause notice as well as opportunity of hearing was given to the Petitioner, in response to which the Petitioner had submitted his detailed pointwise reply and had also given his written submissions at the time of hearing but none of them have been considered by the Respondent No. 1 while passing the impugned order, and all that has been stated is that no material evidence or ground has been given in the reply so as to discharge the Petitioner of the charges. It is, thus, submitted that the impugned order has been passed by the Respondents in a mechanical manner without application of mind and without considering the pointwise reply and written submissions of the Petitioner and as such, the impugned order is liable to be set aside.