SWARN PRABHA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner, who is elected Chairman President of Nagar Panchayat Sahatwar, Distrit Ballia (hereinafter referred to as 'municipal Board') has challenged the order dated 27th March, 2008, passed by respondent No. 1, a copy where of is annexed as Annexure-'8' to th. e writ petition", where by the petitioner was asked to show cause as to why for'the charges mentioned in the aforesaid show cause'notice she be not removed from the office of the Chairman President of the 'municipal Boand' as conterriplated under Section 48 (2) of the U. P. Municipality Act, 1916 (here in after referred to as the Act ). Petitioner is asked to submit raply with in a period of one fort night from the date of receipt of the notice, failing which the petitioner shall be removed frorn the office of the Chair man President of the 'municipal Board'. THE petitioner was alsccserved with an order dated 29th March, 2008, passed by respondent. No. 3, a copy where of is. annexed as-Annexure-'9' to the writ petition, where by the respondent No. 3 has directed that pending finalization of the proceedings under Section 48 of 'the Act'. ' with regard to the show cause'notice, the administrative powers of the office of the Chairman President shall be exrcised by Sri M. P. Saroj, Sub-Divisional Magigtrate, Bansdih. It is these. two orders, which are challenged by the petitioner by means of present writ petition under Article 226 of the Constitution of India.

(2.) IN order to appreciate the arguments advanced on behalf of petitioner, it is necessary to reproduce the provisions of Section 48 of U. P Municipality Act, 1916, which reads thus : "48. Removal of President.- (1 ). . . -. . . . . . . . . . . . (2) Where the State Government has, at any time, reason to believe that- (a)there has been a failure on the part of the President in performing his duties, or (b) the President has- (i) incurred any of the disgualifications mentioned in Sections 12-D and. 43-AA; (ii) knowingly acted asa President or as a member in a matterother than a matter referred to in clauses (a) to (g) of sub-section (2) of Section 32, in which he has, directly or indirectly, or by a partner, any share or mterest whether pecuniary or of any other nature, or in which he was professionally interested on behalf of a client, principal or other person; or.- (iii) with in the meaning of Section 82 knowingly acquired or continued ter have, directly or indirectly orby a partner, any share or mterest, whether pecuniary or of any other nature, in any contract or employment with, by or on behalf of the [municipality]; or (iv) to (xvii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It may call upon nim to show cause with in the time to be specified in the notice why he should not be removed from office: Provided that where the State Government has reason to believe that the allegations do not appear to be groundless and the President is prima tacie guilty on any of the. grounds of this sub-section resulting in the issuance of the show-cause notice and procesdings under this sub-section he shall, from. the date of issuance of the show-cause notice containing charges, cease to exercise perform and discharge the financial and administrative powers, func-tions and duties of the President until he is exonerated of the charges men-tioned in the show-cause notice issued to him under this sub-section and finalization of the proceedings under sub-section (2-A) and the said powers, functions and duties of the President during the period of such ceasing, shall be exercised, performed and discharged by the District Magistrate or an officer nominated by him not below the rank of Deputy Collector"

(3.) SINCE the final order purporting to removal of the petitioner. is yet to be passed, which in our view will be passed only after explanation submitted by the petitioner to show cause notice is considered, we do not find that for exercise of the power under the proyiso to sub-section (2) of Section 48 of 'the Act', there is" any reguirement for affording an opportunity of hearing to the petitioner or for'the observance of principles of natural justice even by implication. The exerclse of power under Seetion' 48 (2) of 'the Act' is only an interim arrangement pending final orders for removal of the petitioner as Chairman President of 'municipal Board' concerned. This view of ours find. support from the decisipn of a Division Bench to which one of us, namely (Justice Anjani Kumar) is a member in the case reported in 2008 (3) ADJ 315 (DB), Rekha (Kinner) v. State of U. P. and others.