Sunil Ambwani and Ran Vijai Singh, JJ.@mdashHeard Shri Kesari Nath Tripathi, senior advocate assisted by Shri Suneet Kumar, learned Counsel for the petitioner. Learned standing counsel appears for the respondents. Shri Devendra Kumar has entered caveat for the Administrator and Executive Officer of the Nagar Panchayat, Kithore, district Meerut.
2. Shri Matloob Gaur, the petitioner was elected as Chairman of Nagar Panchayat, Kithore, district Meerut in November, 2006. A notice dated 5.2.2008 was issued to him by the State Government on 5.2.2008 and was served upon him by the District Magistrate, Meerut by his letter dated 8.2.2008 to show cause as to why he should not be removed from the post of the Chairman of the Nagar Panchayat u/s 4(2)(b)(ii), (iv), (ix), (x), (xi), (xii) and (xvii) of the U.P. Municipalities Act, 1916. The notice also contained an order by which the petitioner''s financial and administrative powers under the proviso to Section 48(2) of the U.P. Nagar Palika Adhiniyam, 1916 were ceased, and were directed to be exercised by the District Magistrate, or an officer nominated by the District Magistrate, who shall not be Sub-Divisional Magistrate to exercise such powers until the petitioner is exonerated of the charge. The District Magistrate by his communication letter dated 8.2.2008 directed the Sub-Divisional Officer, Mawana to exercise the financial and administrative powers, until the conclusion of the proceedings.
3. The show cause notice contained four charges namely : (1) that the petitioner had stated in his affidavit filed alongwith nomination paper on 5.10.2006 that there was no case pending against him in any Court. He did not disclose the cases, which are pending against him and thus concealed the facts; (2) the log book dated 2.8.2007 of the consumption of diesel was only with regard to tractor. The tractor driver stated that the diesel is filled directly at the petrol pump and is not consumed separately. No log book was maintained for the period prior to the period 2.8.2007, causing doubt over the consumption of diesel; (3) the contract for parking place for the year 2007-08 of Nagar Panchayat Kithore, was settled by the petitioner in favour of his brother Shri Maroof Ahmad. Three persons namely Shri Maroof Ahmad, Dilshad and Sher Mohammed participated in the auction held on 30.5.2007, whereas the amended bylaws were published in the gazette on 14.7.2007. The petitioner violated the conditions of Section 18(b)(ii), which prohibits the Chairman of the Nagar Palika to give benefits to his family members either directly or indirectly; and (4) the plot Nos. 908. 903, 935 are registered as a pond and is not in the possession of the Chairman of the Nagar Panchayat, but plot No. 702, which is entered as ''khata kuria'' (manure pits) has been used to construct a house for which a suit is pending in the civil court and that Court directed the parties to maintain status quo. In preliminary enquiry the charge was found fully proved against the Chairman.
4. The petitioner in his reply dated 20.2.2009 after referring to the documents in his support denied the allegations and submitted that no enquiry was made from him nor any facts were placed before him. He has not misused the property and money of Nagar Panchayat in any manner. With regard to allegations in Charge No. 1 relating to concealment of the cases at the time of filing nomination does not come within the purview of Section 48 of the Nagar Palika Adhiniyam, 1916. He has not been convicted in any offence, and that in all the cases in which the decisions were made, the petitioner was either discharged or acquitted. Regarding Charge No. 2 the petitioner stated that the consumption of diesel relates to the tractor of Nagar Panchayat. The log book of the period prior to 2.8.2007 is available in the office of Nagar Panchayat in which entries have been made by the tractor driver. The petitioner has not used the diesel in any other vehicle or for any other purpose. The driver had stated that he directly fills the diesel in the tractor. The petitioner is not responsible for maintenance of the log book of the tractor. On Charge No. 3 the petitioner alleged that Shri Maroof Ahmad is a contractor of collecting parking fees from 1.4.2006, much before the petitioner was elected as Chairman. At that time Shri Shams Parvez was the Chairman. There are no dues pending on Shri Maroof and that Nagar Panchayat has not suffered any loss. The petitioner''s brother Maroof Ahamd is living separately from the petitioner and has ration card in his own name. The petitioner has no concern with his business. The contract of parking fees has been given in accordance with the rules and that the contract settled after due execution vide publication in Amar Ujala and Punjab Kesari newspapers on 17.5.2007, 23.5.2007 and 29.5.2007 was approved by the Board. The Munadi was also made in Nagar Kithore area on 16.5.2007 and 21.5.2007 before auction was held on 30.5.2007. Shri Maroof was the highest bidder and as old contractor with no complaint against him, his highest bid was accepted and approved by the Board.
5. On the last charge the petitioner stated in his reply that Khasra No. 702 is situated in Mohalla Mausam Khani, Nagar Panchayat Kithore, whereas the petitioner''s house is situate in Mohalla Badbaliyan Nagar Panchayat Kithore. There is no dispute or suit pending in any Court relating to Plot No. 702 and that charge is entirely false and baseless. He further submitted that the enquiry report has been prepared on ''the pressure exercised by Shri Munkad All, member of Rajya Sabha/leader of Bahujan Samaj Party. Shri Munkad All has illegally occupied Nagar Panchayat land. The petitioner has initiated proceedings for his eviction from Khasra No. 632 Kabristan and 633 Rasta belonging to Nagar Panchayat and had also made complaint to the Sub-Divisional Magistrate, Mawana on 24.9.2007 and 26.9.2007. A Writ Petition No. 42015 of 2007 filed by the petitioner impleading Shri Munkad All as respondent is pending. The petitioner had defeated Shri Majid All, the brother of Munkad All in the elections giving rise to the complaint against him. Khasra No. 702 is old abadi on which house of Farooq, Mashroor, Hazi Aarif, Shahid Manzoor and Shamshad have been constructed.
6. It is alleged that the Principal Secretary, Nagar Vikas Anubhag No. 1 fixed 27.8.2008 for hearing. The intimation of the date was received by the petitioner on 23.8.2008. On the date fixed no document was shown to the petitioner. The petitioner was required to submit his reply either orally or in writing. Since no further documents were relied upon, the petitioner stated that he has already given his reply in writing. The petitioner, thereafter, waited for a decision to be taken by the State Government. By an order dated 14.11.2008 giving rise to this writ petition the petitioner has been removed from the office of the Chairman of Nagar Panchayat, Kithore giving rise to this writ petition.
7. Shri Keshari Nath Tripathi, learned Counsel for the petitioner submits that the powers u/s 48 to remove the elected Chairman of the Nagar Panchayat should be sparingly exercised by the State Government. These powers cannot be compared with the powers of misconduct of a Government servant. An elected Chairman can be removed on the grounds given in Section 48(2)(b) of the U.P. Municipalities Act, 1916 but that the charge should be serious enough to initiate the action and to exercise the powers of removal. In the present case the first charge relating to the cases pending against the petitioner at the time of filing of the nomination and the failure to disclose the pendency of the case cannot be a ground of removal as the disqualification u/s 12(D) and Section 43(AA) of the Act, may be incurred after the petitioner is elected. The State Government did not disclose the pendency of any case against the petitioner by giving the details and that the impugned order also does not give reference to the pendency of any case against the petitioner on the day, when he contested the election. The charge is not only vague but is also non-existing and does not fall in any of the conditions of exercise of powers u/s 48(1)(b) of the Act.
8. With regard to second charge relating to the consumption of diesel, it is submitted that the petitioner as Chairman of the Nagar Panchayat was not directly concerned with the consumption of diesel and the supervision of the log book. The charge does not give the details of the consumption of the diesel and the alleged discrepancy in the log book. The allegation that the log book dated 2.8.2007 only relates to the diesel consumed by the tractor, and that log book prior to 2.8.2007 was not maintained was entirely vague and did not allege or establish any misconduct against the petitioner. The petitioner had clearly stated that the maintenance of log book is a matter to be looked after by the Executive Officer and that log book of the period prior to 2.8.2007 is available. The Executive Officer, incharge for maintaining log book may not have produced the same before the enquiry officer but that by itself could not be a ground to make an enquiry unless it was shown that the diesel was misused.
9. On the third charge the State Government has illegally and arbitrarily accepted the report of the District Magistrate that the proceedings of auction held on 30.5.2007 should have awaited the selection of the parking place in accordance with the amended bylaws published on 14.7.2007, and that the petitioner has not given any reply or evidence to disprove the fact. The Chairman has given direct benefit of contract to his brother in violation of Section 48(2)(b) of the Act and has thus committed an act, which makes him liable to be removed from the office. It is submitted by Shri K. N. Tripathi that Section 48(2)(b)(ii) relates to knowingly acquire or continued to have, directly or indirectly or by a partner, any share or interest, whether pecuniary or of any other nature, in any contract or employment with by or on behalf of the Municipality or (iii) knowingly acted as President or as a member in a matter other 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 interest whether pecuniary or of any other nature, or in which he was professionally interested on behalf of a client, principal or other person. There are no allegation that the petitioner has any pecuniary interest in the contract awarded to his brother, who was working as a contractor of the Nagar Panchayat from before the election of the petitioner as Chairman. The allegations that the petitioner had approved the contract before the matter could be considered by the Board is entirely incorrect as the petitioner as Chairman of the Nagar Panchayat did not approve the contract. The proceeding of the auction and the highest bid was approved by the Executive Officer and was approved by the Board.
10. With regard to findings on the last allegations Shri Kesari Nath Tripathi submits that the report of the District Magistrate accepted by the State Government was entirely vague and did not give the details either of the construction of the house or the pendency of the case. The petitioner had clearly stated in his reply that his house was not constructed at Plot No. 702 Mohalla Khani but was situated in Mohalla Badbalian and that infact the house of Farooq, Mashroor and others were constructed on the Khasra No. 702 recorded as purani abadi. The State Government without considering the petitioner''s reply has mechanically believed the report of the District Magistrate in exercising the extreme powers of removal of elected Chairman of the Nagar Panchayat.
11. Shri Kesari Nath Tripathi has relied upon the judgments in
12. Learned standing counsel on the other hand submits that the charges were fully proved. The petitioner had misused his office. He was facing several criminal cases at the time, when he contested the elections and that charge of misuse of diesel in failing to maintain the log book properly and allowing his brother to be awarded the contract for parking place was sufficient to remove the petitioner. Further the petitioner had occupied public utility land in Khasra No. 702 for constructing his house. The State Government considered the preliminary enquiry report and the reply submitted by the petitioner in taking action against him. The Writ Petition No. 8761 of 2008 Matloob Gaur v. State of U.P. against notice dated 5.2.2008 was dismissed by the High Court on 7.5.2008. He was given full and adequate opportunity to defend himself both by filing a reply in writing and to appear and making oral submissions. The preliminary enquiry report was found established against the petitioner. The complaint made by Hazi Rais Ahmad and Smt. Naeem, Nagar Panchayat Kithore were supported by the affidavits verified by them and that Regional Naib Tehsildar had caused an enquiry and found the allegations to be proved. There is no illegality in the order of the State Government to cause interference in the matter.
13. A Nagar Panchayat under Article 243Q of the Constitution of India is a local body of a transitional area, in transition from a rural area to an urban area to which the elections are held in accordance with the procedure prescribed in the U.P. Municipalities Act, 1916. The Chairman is elected directly and that his term is coterminous with the term of the Nagar Panchayat. He may resign in writing to the State Government and can be removed, u/s 48, 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 that he is under Clause (b) incurred any of the disqualification or conducted himself in a manner provided in the fifteen clauses of Clause (b) of Sub-section (2) of Section 48. The proceedings for removal must serve the principle of nature justice and that decision must show that the authority had applied its mind to the allegations made, the explanation furnished and the material produced by the elected representative.
14. The elected public representative of local body is accountable to his electorate. His removal by the State Government has serious consequence as the people, who had elected him, loose their voice to be represented by him. The power of judicial review, in such matters is limited but has to be exercised with caution. An elected representative should ordinarily be allowed to complete his term for which he is elected. If the State Government wants to curtail the term on any of the ground given in Section 48(2)(b) of the Act, there must be a complaint on which a preliminary enquiry is made, and that material collected during the enquiry must be put to the elected representative in the form of specific charge. The burden of proving such charges is upon the complainant. The charges must be specific and must contain all the details to submit effective reply. The findings must not only be based on material but should also relate to the grounds given in detail in Section 48(2)(b) of the Act. The State Government must consider and after enquiries serving the principles of natural justice find with reasons to be recorded in writing that the allegations are sufficiently serious to remove him from the elected office. The proviso to Sub-section (2A) provides that where the State Government has issued notice in respect of any of the grounds in Clause (a) or Sub-clause (ii), (iii), (iv), (vi), (vii) and (viii) of Clause (b) and Sub-section (2), it may instead of removing him, given him a warning.
15. In the present case the charge No. 1 against the petitioner did not fall in any of the clauses for removing the Chairman u/s 48(2) of the Act. The disclosure of the pendency of the case, at the time of contesting the elections is a matter of incurring disqualification for contesting the elections with an object to inform the electorate as well as to verify whether the person is qualified to contest the election of the President. Such a charge will not fall within the meaning of the ground in Section 48(2)(b)(1), which provides for incurring any disqualification mentioned in Sections 12D and 43(aa) of the Act. Section 12D of the Act provides for disqualification for registration in an electoral roll, such as the person is not a citizen of India or is of unsound mind, and so declared by the competent court or is for the time being disqualified from voting under the provisions of any law relating to corrupt practice and other offences in connection with elections. In such case his name has to be struck of the electoral roll. Section 43AA provides for disqualification for a Presidentship and which includes the disqualification such as the person is not the elector for any ward or has not attained the age of 30 years on the date of his nomination. A person is also disqualified under Sub-section (2) for being chosen and for being President of the municipality, if he is or has become subject to any disqualification mentioned in Clauses (a) to (g) and for (i) to (k) of Section 13D. The failure to disclose the pendency of case is not a ground of disqualification unless such case has resulted into the disqualification for contesting the elections such as conviction for any offence punishable with imprisonment u/s 171(E) or u/s 17(F) of the I.P.C., 1860 in Section 13D(h)(ii) or sentence to imprisonment for contravention of any of the order under the Essential Commodities Act etc. or for an offence, which is declared by the State Government to involve such moral turpitude as to render him unfit to be a member etc. given in Section 13D(h)(j) provided that in case of (j) the disqualification shall cease on the expiry of five years.
16. The disqualification of a person to be elected as a member u/s 12D and the disqualification to contest as a President u/s 43AA can be a ground to file and declare the election of the President to be invalid but that these grounds cannot be the subject-matter of complaint and enquiry by the State Government in removing a President u/s 48 of the Act.
17. The second charge related to the negligence in maintaining the log book of the use of diesel in the tractor of the Nagar Panchayat. The charge only related to the maintenance of log book, which is the job of the driver and has to be supervised u/s 60 of the Act by the Executive Officer. The Act does not provide for supervision of maintenance of log book and consumption of diesel to be made by the Chairman of the Nagar Panchayat. The State Government neither charged nor alleged any misuse of the diesel, purchased by the Nagar Panchayat, by the petitioner. The charge, therefore, did not relate to the petitioner and any case did not prove any misuse of the property and assets of the Nagar Panchayat. In respect of third charge the State Government has found substance in the report of the District Magistrate that the auction took place on 30.5.2007, whereas the amended bylaws for identifying the parking place were published on 14.7.2007 and that Chairman has not given any reply or evidence in this regard. The Chairman is not permitted to give any contract either directly or indirectly and that he had approved the contract before it was placed before the Board. The State Government did not consider the petitioner''s reply that the brother of the petitioner was already working as a contractor of the Nagar Panchayat prior to his election. He was living separately and that notification of the bylaws, was subsequent to the auction held after giving due publicity in which three persons had participated. There was no finding that the petitioner had obtained any financial gain or that he had given any favour to his brother. The burden of proving was also wrongly shifted upon the petitioner. No one had challenged settlement of the contract or that the offer was inadequate. There was no allegation of any direct or indirect benefit accrued to the petitioner in respect of award of the contract to his brother. There are no findings on the reply given by the petitioner that his brother is living separately and has a separate ration card in his name and that the petitioner had no concern with him.
18. With regard to the last charge, once again the State Government wrongly placed the burden on the petitioner. There is no finding that the petitioner''s house is constructed on the Khasra No. 702. On the contrary the finding is that the Chairman could not prove by any evidence in his reply that his house is not constructed at Khasra No. 702 and that no case is pending in respect of his house on Khasra No. 702 in any civil court or any revenue court filed either by the petitioner or his father. The State Government has not given clear finding with regard to construction of the house of the petitioner on public utility land and has not considered the petitioner''s reply that his house is not constructed on Khasra No. 702 but is actually constructed in Mohalla Badbaliyan. Further there was no finding on the reply given by the petitioner that the house of Farooq, Mashroor and others are constructed on Khasra No. 702.
19. On the aforesaid discussion we find that the State Government not only wrongly placed the burden of proof of the charges on the petitioner to be disproved by him, but also failed to discuss the evidence led by the petitioner. The charge No. 1 had no concern with the misconduct and did not fall in any of the grounds given in Section 48 (2)(b) and that charge No. 2 was wholly vague and was not related to the duties performed by the petitioner. The third and fourth charge, were also not proved against the petitioner.
20. Since we have found that four charges levelled against the petitioner were not proved, we are not going into allegations of mala fide. We may, however, observe that in order to remove an elected Chairman of Nagar Panchayat, the State Government must have a good case, falling within the grounds given in Section 48 of the Act and on which the explanation of the person is not sufficient. The charges, even if proved, may not always result in a decision of removing him from the office. The State Government may exceed unless the charges are very serious giving him a warning inasmuch as a President removed under Sub-section (2A) shall also cease to be a member of the Nagar Panchayat and in case of his removal on any of the ground mentioned in Clause (a) or Sub-clause (vi), (vii) or (viii) of Clause (b) of Sub-section (2) is not eligible under Sub-section (4) for re-election as President or member for a period of five years from the date of his removal. This penalty clause puts the State Government under a duty to remove a President only if the charges are serious and that in the opinion of the State Government the person does not deserve to continue in the office as the Chairman of Nagar Panchayat. Each case, however, will depend upon its own facts.
21. The writ petition is allowed. The order of the State Government dated 14.11.2008 removing the petitioner from the office of the Chairman of Nagar Panchayat, Kithore, district Meerut is set aside. The petitioner shall be allowed to resume the charge, if the charge of the Chairman, Nagar Panchayat has been taken away from him.
