R S KHAN Vs. STATE OF U P

JUDGEMENT

(1.) THE short question that arises for consideration in this petition is what would be the effect of dismissal of earlier writ petition directed against removal of petitioner from the office of President, Nagar Palika Parishad by the State Government on 18.3.1999, as infructuous on 16.11.2002.

(2.) THIS petition challenges removal of petitioner from the office of President, Nagar Palika Parishad, Khurja, Bulandshahr (in short NPP), in subsequent election held in November 2000. She was administered oath on 2.12.2000, by Sub -Divisional Magistrate, Sikandrabad. On a complaint made by some members of the Board to the State Government through Commissioner that the Board was not properly constituted as oath was administered to 14 members only and the President was acting arbitrarily and against the interest of the Board. An inquiry was made and report was submitted by the Chief Development Officer to the District Magistrate, Bulandshahr. He found various irregularities amounting to misconduct. On this report the Commissioner recommended for necessary action by the State Government. The Government issued a show cause notice on 10.8.2001, to the petitioner. The petitioner twice took time but did not file any reply. Therefore, the State Government on 12.12.2001, presuming that the petitioner was deliberately delaying and she had nothing to say, found that the allegations were correct and passed an order removing the petitioner from the office of President, NPP. The petitioner challenged the order dated 12.12.2001, by means of writ petition No. 44438 of 2001. The Writ Petition was allowed on 16.11.2002 and the order dated 12.12.2001, was set aside. The High Court held that the State Government passed the order without recording proper reasons. It was held that the petitioner might not have filed full reply but an interim reply having been filed it should have been considered. The State Government filed Civil Appeal No. 3262 of 2003, before the Supreme Court which was disposed of on 8.8.2003, modifying the order of the High Court and remitting the matter back to the concerned authorities for fresh examination. It further directed that the respondent shall not assume the office which she had held but it will be open to the authorities to consider the question of reinstatement, on representation to be made by the petitioner within a week and, the entire matter was to be decided within one month from 8.8.2003.

(3.) IN the counter -affidavit filed by Under Secretary, Nagar Vikas, U.P. Secretariat, Lucknow on behalf of respondent Nos. 1 and 2 it had been stated in paragraph 5 that the President had no authority to administer oath to the elected members of the NPP. Under the provisions of the Section 43 -D(4) of the U.P. Municipalities Act, 1916 (in short the Act) the District Magistrate and in his absence Deputy Collector nominated by him could have administered oath to the elected members or President of the NPP. Therefore, the first resolution dated 11.12.2000 and the other resolutions passed in the meeting dated 11.12.2000 were contrary to law. The complaint made by the members of the NPP was to the effect that on 11.12.2000 oath was administered to only 11 members and no other resolution was passed. The State Government directed for holding of inquiry through the Chief Development Officer and he had reported that on 11.12.2000, the meeting was required to be called under Section 86 by the President, but out of 25 members of the Board only 14 elected members were administered oath and 11 members could not be administered oath, therefore, the Board could not be said to have been constituted on 11.12.2000. Consequently, the resolutions passed on 11.12.2000 were totally illegal and contrary to law. The State Government issued show cause notice to the petitioner on 10.8.2001, but she did not submit her reply on one pretext or the other. She had been provided all relevant records that were relied by the inquiry officer. The State Government after waiting for about four months passed the order on 12.12.2001 removing her from the office of President NPP. In compliance of the directions of the Supreme Court dated 8.8.2003, the petitioner filed a representation on 11.8.2003. Inquiry was held by the Commissioner. He gave opportunity of hearing on 16.9.2003 to the petitioner and submitted his report. Thereafter, another inquiry was held by the Director Local Bodies, U.P., Lucknow who found the petitioner guilty of misconduct. The representation of the petitioner was rightly rejected by the State Government.