Nov - High Court of Judicature at Allahabad

1074 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the nomination and the failure to
disclose the pendency of the case can not
be a ground of removal as the
disqualification under Section 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 under Section 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 (b) (2) 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