# (2011) 1 ILRA 457

- **Citation:** (2011) 1 ILRA 457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-03
- **Case number:** Civil Misc. Writ Petition No. 7849 of 2011
- **Bench:** F.I.Rebello, C.J. Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2011-1-ilra-457-41881
- **Pages:** 5

## Headnote

Sri Amit Saxena
Sri P.N.Saxena

Counsel for the respondents
Sri Irshad Hussain
C.S.C.

U.P. Municipalities Act 1916-Section 48
(2) (a) and (b) (vi)(xi)(xiv)-necessity of
recording reasons-ceasure of financial
and administrative Power of President
Nagar
Palika
Parishad-without
considering reply as well as written
submission-mere
saying
no
material
available-highly
shocking-even
administrative authority are bound to
give reasons-order can not sustain.

Held: Para 9

In the present case, what we see is that
the entire exercise has been undertaken
by the respondent authorities with a
predetermined mind, throwing to the
winds the entire procedure prescribed in
law. This is evident from a plain reading
of impugned order as well as the conduct
of the respondents while dealing with a
serious
matter
of
removal
of
the
petitioner
who
is
a
democratically
elected
President
of
Nagar
Palika
Parishad. Neither his reply has been
properly
considered
nor
written
submissions taken into account, except
for a mere mention in the order that
nothing
material
has
been
stated
therein. If this is permitted, then in
every case all replies, arguments and
submissions can always be brushed
aside in a sentence by stating that
nothing material has been argued or
submitted
and
thus
the
reply
or
submission
is
rejected.
Authorities
performing quasi judicial functions are
obliged to give reasons for not accepting
the replies or submissions of a party.
This is to ensure that there is nothing
arbitrary in the actions of the authorities
and that the authority has looked into
the matter after applying his mind. In
the present case, the same is totally
lacking. This Court strongly deprecates
the same. What we also notice is that the
conduct of the respondents in the case of
the petitioner earlier also has not been
very fair as once after the order ceasing
the financial and administrative powers
of the petitioner as President had been
stayed by this Court on 4.2.2010, the
same was not restored for more than
four months till 23.6.2010, without there
even being any stay order from the Apex
Court in the Special Leave Petition filed
by
the
respondents,
which
was
ultimately dismissed.

## Text

1 All Abdul Aziz Ansari V. State of U.P. and another
457
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2011

BEFORE
THE HON'BLE F.I.REBELLO, C.J.
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 7849 of 2011

Abdul Aziz Ansari

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Amit Saxena
Sri P.N.Saxena

Counsel for the respondents
Sri Irshad Hussain
C.S.C.

U.P. Municipalities Act 1916-Section 48
(2) (a) and (b) (vi)(xi)(xiv)-necessity of
recording reasons-ceasure of financial
and administrative Power of President
Nagar
Palika
Parishad-without
considering reply as well as written
submission-mere
saying
no
material
available-highly
shocking-even
administrative authority are bound to
give reasons-order can not sustain.

Held: Para 9

In the present case, what we see is that
the entire exercise has been undertaken
by the respondent authorities with a
predetermined mind, throwing to the
winds the entire procedure prescribed in
law. This is evident from a plain reading
of impugned order as well as the conduct
of the respondents while dealing with a
serious
matter
of
removal
of
the
petitioner
who
is
a
democratically
elected
President
of
Nagar
Palika
Parishad. Neither his reply has been
properly
considered
nor
written
submissions taken into account, except
for a mere mention in the order that
nothing
material
has
been
stated
therein. If this is permitted, then in
every case all replies, arguments and
submissions can always be brushed
aside in a sentence by stating that
nothing material has been argued or
submitted
and
thus
the
reply
or
submission
is
rejected.
Authorities
performing quasi judicial functions are
obliged to give reasons for not accepting
the replies or submissions of a party.
This is to ensure that there is nothing
arbitrary in the actions of the authorities
and that the authority has looked into
the matter after applying his mind. In
the present case, the same is totally
lacking. This Court strongly deprecates
the same. What we also notice is that the
conduct of the respondents in the case of
the petitioner earlier also has not been
very fair as once after the order ceasing
the financial and administrative powers
of the petitioner as President had been
stayed by this Court on 4.2.2010, the
same was not restored for more than
four months till 23.6.2010, without there
even being any stay order from the Apex
Court in the Special Leave Petition filed
by
the
respondents,
which
was
ultimately dismissed.

(Delivered by Hon'ble F.I.Rebello, C.J.)

1. The petitioner was elected as
President of Nagar Palika Parishad,
Kairana, Muzaffar Nagar and took charge
of the said office on 16.11.2006. The term
of office of the petitioner is five years. In
the preceding five years term also, the
petitioner was elected and functioned as
President of Nagar Palika Parishad. On
20.1.2009, a complaint was lodged by the
two members of the Nagar Palika
Parishad, which related to the business of
the Parishad conducted during the term
prior to 2006 as well as for the current
term. On 27.8.2009, the petitioner was
issued a show cause notice by the State
Government as to why the petitioner may
not be removed from the office of the
458 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
President under Section 48(2)(a) and
(b)(vi)(xi)(xiv) of the Municipalities Act,
1916 (hereinafter referred to as the 'Act').
By the said order itself, the financial and
administrative powers of the petitioner
were ceased under the proviso to Section
48 of the Act. The petitioner thereafter
submitted his detailed pointwise reply to
the respondent no. 1 on 11.9.2009. Since
no order was passed, the petitioner filed a
writ
petition
no.
48338
of
2009
challenging the ceasure of his financial
and administrative powers. By order dated
4.2.2010 passed in the aforesaid writ
petition, the order ceasing the financial
and
administrative
powers
of
the
petitioner vide order dated 27.8.2009 had
been stayed by this Court but it was
provided that the enquiry may proceed.
Challenging the said interim order, the
State Government filed a Special Leave
Petition no. 17031 of 2010 in which no
interim
order
was
granted
and
subsequently the special leave petition
was dismissed by the Apex Court. It was
only on 23.6.2010 that the financial and
administrative powers of the petitioner
were restored. Since further proceedings
in pursuance of the notice were not
stayed, on 28.12.2010 the petitioner was
given an opportunity of hearing by the
respondent no. 1, on which date the
petitioner
also
filed
his
written
submissions.
Then
by
order
dated
27.1.2011 passed by the respondent no. 1
(State of UP through Principal Secretary,
Nagar Vikas, Lucknow), the petitioner
has been removed from the office of the
President of Nagar Palika Parishad,
Kairana, Muzaffar Nagar. Challenging the
said order, this writ petition has been
filed.

2. We have heard Sri P.N. Saxena,
learned Senior Counsel assisted by Sri
Amit Saxena, learned counsel appearing
for the petitioner as well as learned
Standing Counsel appearing for the
respondents
and
have
perused
the
averments made in the writ petition as
well the counter affidavit filed by the
respondents.

3. The submission of learned
counsel for the petitioner is that the
impugned order has been passed under
Section 48(2)(a) of the Act, which gives
the power to the State Government to
remove the President only if there has
been a failure on the part of the President
in performing his duties. It is contended
that the charges levelled against the
petitioner cannot be termed as failure on
the part of the President in performing his
duties, which is the ground for removing
of the petitioner. The charges can be
divided in two sets, one which relates to
fixation of annual rent of five houses and
land, which was fixed at less than rental
value, and the other regarding transfer of
tenancy rights of nine shops, out of which
eight shops were transferred in the
preceding term which ended in 2006, and
only one with regard to the current term,
for which explanation had been given by
the petitioner in his detailed pointwise
reply running in over 15 pages. Learned
counsel for the petitioner has vehemently
argued that though show cause notice as
well as opportunity of hearing was given
to the petitioner, in response to which the
petitioner had submitted his detailed
pointwise reply and had also given his
written submissions at the time of hearing
but none of them have been considered by
the respondent no. 1 while passing the
impugned order, and all that has been
stated is that no material evidence or
ground has been given in the reply so as
to discharge the petitioner of the charges.
1 All Abdul Aziz Ansari V. State of U.P. and another
459
It is, thus, submitted that the impugned
order has been passed by the respondents
in
a
mechanical
manner
without
application
of
mind
and
without
considering the pointwise reply and
written submissions of the petitioner and
as such, the impugned order is liable to be
set aside.

4. Learned Standing Counsel has
however submitted that the order finds
support from the reports of District
Magistrate and Sub-Divisional Magistrate
and as such the said order should be
considered in the light of the said reports,
and he thus submits that the order is fully
justified.
On
being
asked,
learned
Standing Counsel could not make a
statement as to whether the reports of the
District Magistrate and Sub-Divisional
Magistrate had been provided to the
petitioner before passing of the impugned
order. It has been further submitted that
the order having been passed under
Section 48(2-A) and not under Section
48(2)(a) is fully justified as, according to
the learned Standing Counsel, by UP Act
No. 6 of 2004 sub-section (2-A) had been
inserted to provide that where after
enquiry the President is found to be guilty
of any of the grounds referred to in subsection (2), he shall cease to exercise,
perform and discharge the financial and
administrative powers, functions and
duties of the President, which shall, until
he is exonerated of the charges mentioned
in the show cause notice issued to him
under sub-section (2), be exercised and
performed by the District Magistrate or by
an officer nominated by him not below
the rank of the Deputy Collector.

5. According to the learned counsel
for the petitioner, the said sub-section (2A) has been omitted by UP Act No. 2 of
2005 and as such would have no
relevance to the facts of the present case.

6. Perusal of the impugned order
dated 27.1.2011 would go to show that
the relevant charges have been mentioned
in the said order and just below each
charge, a brief synopsis of the reply has
been given. In the end all that has been
stated is that the petitioner had been given
personal hearing on 28.8.2010 on which
date written submission was also filed, in
which
it
was
mentioned
that
the
complainant had stated that he had not
lodged any such complaint nor signed the
same and as such the complaint was false,
which could not be the basis of initiating
proceeding against the petitioner. After
recording this, in six lines the entire
evidence
and
submissions
of
the
petitioner have been discarded by merely
stating that no material evidence or
ground has been placed to dispute the
charges and hence exercising power under
Section 48(2)(a) of the Act the petitioner
is removed from the office of Nagar
Palika
Parishad,
Kairana,
Muzaffar
Nagar.

7. This is a shocking way of dealing
with
the
complaint
and
the
reply
submitted, leading to the removal of an
elected
President
of
Nagar
Palika
Parishad.
Merely
completing
the
procedure and formality of issuing notice
and receiving the reply to the notice and
giving opportunity of hearing is not
sufficient. What is to be seen is that the
reply to the show cause notice, which in
the present case is detailed point wise
reply, has been considered by the
authority or not. In the reply, the
petitioner has given clear reasons for
fixing of annual rental value at below the
actual rent received and also for transfer
460 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
of tenancy rights of the shop in question,
which all was done after the necessary
resolution was passed by the Members of
the Nagar Palika and not by the President
alone. What we find from the impugned
order is that the explanation given by the
petitioner has not been dealt with or
considered by the respondent no. 1 while
passing the final order.

8. Foundation of democracy in our
country is laid down at the grass root
level. In the villages, Gram Pradhans are
democratically elected by the people. In
towns and cities, the Members and
President of Nagar Palika Parishad are
elected by the people under the provisions
of the Municipalities Act. It is this
democratic process, which begins from
the grass root level and goes upto the
election of the Members of Legislative
Assemblies and the Parliament, which
runs the State Governments and the
country. At the lower level, the village
panchayats and local bodies are elected by
the people so that people, through their
representatives, have their say in the
running of the local bodies. No doubt the
power to either cease the financial and
administrative powers or the removal of a
duly elected President of Nagar Palika
Parishad is provided in the Act itself, but
the same has to be exercised with caution
and not in a routine manner at the whims
and fancies of the authorities so as to
disturb the very fabric of democracy and
shake the foundation of a body duly
elected by the people. Parliament has
recognized the role of local bodies,
specially
the
Panchayats
and
Municipalities
by
amending
the
Constitution and making Constitutional
provisions in the matter of term of office
and other conditions.

9. In the present case, what we see is
that
the
entire
exercise
has
been
undertaken by the respondent authorities
with a predetermined mind, throwing to
the winds the entire procedure prescribed
in law. This is evident from a plain
reading of impugned order as well as the
conduct of the respondents while dealing
with a serious matter of removal of the
petitioner who is a democratically elected
President of Nagar Palika Parishad.
Neither his reply has been properly
considered nor written submissions taken
into account, except for a mere mention in
the order that nothing material has been
stated therein. If this is permitted, then in
every case all replies, arguments and
submissions can always be brushed aside
in a sentence by stating that nothing
material has been argued or submitted and
thus the reply or submission is rejected.
Authorities performing quasi judicial
functions are obliged to give reasons for
not accepting the replies or submissions
of a party. This is to ensure that there is
nothing arbitrary in the actions of the
authorities and that the authority has
looked into the matter after applying his
mind. In the present case, the same is
totally lacking. This Court strongly
deprecates the same. What we also notice
is that the conduct of the respondents in
the case of the petitioner earlier also has
not been very fair as once after the order
ceasing the financial and administrative
powers of the petitioner as President had
been stayed by this Court on 4.2.2010, the
same was not restored for more than four
months till 23.6.2010, without there even
being any stay order from the Apex Court
in the Special Leave Petition filed by the
respondents,
which
was
ultimately
dismissed.
1 All Shiv Om and others V. District Judge, Farrukhabad
461

10. For the aforesaid reasons, we
find merit in this petition and are of the
opinion that the order dated 27.1.2011
cannot be sustained in the eye of law.
Accordingly, this writ petition stands
allowed. The order dated 27.1.2011
passed by the respondent no. 1 is set
aside. It shall be open for the respondents,
if they are so advised, to pass fresh orders
in accordance with law and after giving
adequate opportunity to the petitioner. If
the order be adverse, it is not to be given
effect to for a period of two weeks from
the date of communication of the order to
the petitioner. We make it clear that since
the impugned order has been set aside, the
petitioner shall be forthwith allowed to
function as President with all powers.

11. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2011

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 8528 of 2001

Shiv Om and others
 ...Petitioners
Versus
District Judge, Farrukhabad ...Respondent

Counsel for the Petitioner:
Sri Anand Behari Lal Verma
Sri Tahir Hussain Farooqui

Counsel for the Respondent:
Sri Sunil Ambwani
Sri Amit Sthaleker
S.C.

Constitution of India, Article 226-right to
appointment-out of 7 post of class 4th
employees -appointment made strict in
accordance with merit-thereafter the list
lost its existence-petitioner admittedly
below in merit than those candidatessubsequent
appointment
from
retrenched
employer-petitioner
being
stranger can not be allowed to question
the
same-held-no
right
to
claim
appointment.

Held: Para 8 and 9

I have heard learned counsel for the
parties and have examined the records.

The advertisement, copy whereof has
been enclosed as Annexure-1 to the writ
petition, specifically mentions that there
are 7 vacancies of Class-IV employee on
the
regular
side
and
there
are
9
vacancies of Class-IV employees which
are
reserved
for
appointment
of
retrenched employees. Admittedly, as
against 7 regular vacancies, candidates
strictly in accordance with merit list have
been appointed. Petitioners are lower in
merit viz-a-viz all the seven candidates
appointed. With the appointment of 7
candidates against regular vacancies, the
select list preprepared for the purpose
lost its life. The same was rightly
cancelled under the order dated 04th
December, 2000. The controversy in that
regard stands settled by the Hon'ble
Supreme Court in the case of Rakhi Ray
and others vs. High Court of Delhi and
others; (2010) 2 SCC 637.

So far as the vacancies reserved for
retrenched employees are concerned,
the petitioners can have no claim as they
do not belong to said category. With
regard to the appointments offered by
way of promotion from the post of
Chowkidar and Mali to that of Process
Server
to
the
persons
named
in
paragraph 12 of the writ petition, this
Court
is
of
the
opinion
that
the
petitioners
not
being
employee
of
judgeship
cannot
object
to
such
promotion.
Case law discussed:
(2010) 2 SCC 637; (2002) 10 SCC 269; (2002)
10 SCC 549.