Nov - High Court of Judicature at Allahabad

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1072 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 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 along with 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 No.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 entreis 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
3 All] Matloob Gaur V.State of U.P. and another 1073 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 sufferred 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 Panchayt 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 Ali, member of Rajya Sabha/ leader of Bahujan Samaj Party. Shri Munkad Ali 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 Ali as respondent is pending. The petitioner had defeated Shri Majid Ali, the brother of Munkad Ali 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 under Section 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
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Nov - High Court of Judicature at Allahabad

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