OM PRAKASH MATHURIA Vs. STATE OF U.P.

JUDGEMENT

(1.) In compliance of the order dated 11.2.2014, the record has been produced by the Standing Counsel. Heard Mr. Prashant Chandra, Senior Advocate duly assisted by Mr. Anupam Dwivedi, learned Counsel for the petitioner, Mr. Abdul Moin, learned Additional Chief Standing Counsel and Mr. Kapil Deo, Senior Advocate duly assisted by Dr. V.K. Singh, learned Counsel for the opposite party No. 4 and perused the record. Through the instant writ petition, the petitioner has questioned the validity of the impugned order/second show cause notice dated 28.11.2013 passed by the respondent No. 1, contained in Annexure No. 1 to the writ petition. Further, the petitioner prays for a direction to the respondents to allow him to discharge his duties as Chairman, Nagar Palika Parishad, Badaun, without any let or hindrance; and not to interfere with the functioning of the petitioner in any manner whatsoever.

(2.) In nutshell, the case of the petitioner is that on 17.7.2012, the petitioner was elected as Chairman of Nagar Palika Parishad, Badaun. Soon after assuming the office, the erstwhile chairman of Nagar Palika Parishad, Mr. Abid Raza, who is a sitting MLA from Samajwadi Party, has started making frivolous complaints in writing against the petitioner. However, without providing copies of the complaints, the same were acted upon and after enquiry, the committee submitted its report. Thereafter, on 31.5.2013, the State Government issued a notice under sections 48(1) and (b) (xiv) and (xv) of the U.P. Municipalities Act requiring him to show cause as to why he may not be removed from the post of Chairman, Nagar Palika Parishad. In this regard, it is relevant to point out that the financial and administrative powers of the petitioner have not been suspended. When the petitioner assailed the show cause notice by filing writ petition No. 34134 of 2013, it was dismissed, at the stage of admission, on the ground that the reply which may be submitted by the petitioner would be considered by the State Government after affording an opportunity of hearing to him. Thereafter, the petitioner tendered his reply specificity stating therein that the charges levelled against him are not made out. Instead of affording an opportunity and deciding the sustainability of the show cause notice dated 31.5.2013, the respondent No. 1/Principal Secretary has passed the impugned order/second show cause notice suspending the financial and administrative powers of the petitioner.

(3.) According to the petitioner, the opposite parties issued two show cause notices dated 31.5.2013 and 28.11.2013. The only difference in two notices is suspension of financial and administrative powers. It has been vehemently argued that the State has acted under the political pressure of the sitting MLA, who was the erstwhile Chairman, without applying its independent mind. Further, there is no provision under the Municipalities Act, 1916 to issue a second show cause notice. Prior to suspension of financial and administrative powers, it is incumbent upon the State Government to provide an opportunity of hearing as has been held in Hafiz Ataullah Ansari v. State of U.P., 2011 86 AllLR 291 (F.B.) by this Court in Full Bench. As the petitioner is an elected representative, the manner in which the administrative and financial powers have been withheld, without holding any enquiry and without providing an opportunity of hearing to the petitioner is clearly violative of provisions contained in Article 243 of the Constitution of India, as has been held by the Apex Court in Sharda Kailash Mittal v. State of Madhya Pradesh and others, 2010 2 SCC 319 (S.C.) (Sum.).