HAFIJATAULLAH ANSARI Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition arises out of an order passed by the State Government in exercise of its powers under the First proviso to sub-section (2) of Section 48 of the U. P. Municipalities Act, 1916, by which the petitioner, who is the Chairman of Nagar Panchayat, Dasna, Ghaziabad, has been deprived of his rights to exercise the financial and administrative powers in view of the charge indicated in the show-cause notice dated 24. 10. 2008. In view of the decisions, which have been cited at the Bar, we are of the opinion that the questions raised in this petition and that arise out of the interpretations given by this Court in the Division Bench decisions to be referred by us hereinafter, requires an authoritative pronouncement on the questions so raised, hence this reference.

(2.) THE facts shorn of details that have led to the filing of this petition are that the petitioner, after having been elected as Chairman, undertook the exercise of getting certain bye-laws notified, framed by the Nagar Panchayat for the purposes of levying parking fee on transport vehicles. It has been stated in the petition that previously such parking fee was realised through contractors by private negotiation in the absence of any valid bye-laws. After the publication of the bye-laws, the Nagar Panchayat decided to hold an auction for the said purpose and the same was duly notified and published in 2 newspapers on 1. 6. 2007 and 4. 6. 2007. It is stated that 6 persons participated in the said auction and on 8. 6. 2007, the auction was knocked down in favour of one Ch. Osman for a sum of Rs. 36,000/ -. A resolution was passed by the Nagar Panchayat and a collective decision was taken to award the said contract. It is submitted that the proceedings were carried out through an appropriate advertisement in 2 newspapers and after holding an auction for the same. After one month of the said auction, a complaint was made by a third person along with an offer of Rs. 50,000/- for the same contract stating therein that the contract has been entered into surreptitiously, upon which an inquiry was conducted. THE contract was cancelled by the District Magistrate in view of the offer made by the complainant to the tune of Rs. 50,000/-, where after a fresh auction was held on 4. 8. 2007 in which the bid went up to Rs. 7 Lac. This bid was made by the same Ch. Osman, who had earlier succeeded in getting the contract for Rs. 36,000/ -. In response to a query made by the Sub-Divisional Magistrate, a reply was submitted by the petitioner. It is also to be noted from the reply of the petitioner dated 28. 11. 2007 that the complainant, who had made an offer of Rs. 50,000/- did not increase his bid above the said amount. THE Executive Officer of Nagar Palika submitted a report in response to the notice of the Sub-Divisional Magistrate on 6. 12. 2007. A report was submitted by the Sub-Divisional Magistrate on 22. 2. 2008 which was forwarded by the District Magistrate to the State through his letter dated 29. 2. 2008. THE State Government issued a show cause notice after 8 months which is impugned in the present writ petition and simultaneously passed the order restraining the petitioner from exercising his financial and administrative powers. THE petitioner has submitted his reply to the show cause notice on 8. 11. 2008 but no final orders have been passed by the State Government till date. Before passing of the order, the petitioner was not given any opportunity and was made non-functional.

(3.) THE proviso to Section 48 (2) is quoted herein below for ready reference: "[provided that where the State Government has reason to believe that the allegations do not appear to be groundless and the President is prima facie guilty on any of the grounds of this sub-section resulting in the issuance of the show-cause notice and proceedings 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, functions and duties of the President until he is exonerated of the charges mentioned 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]. "