# Jagdish Prasad Gupta v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-19
- **Case number:** Writ C No. 22742 of 2020
- **Bench:** Pankaj Naqvi, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-prasad-gupta-v-state-of-u-p-ors-46739
- **Pages:** 6

## Headnote

U. P. Municipalities Act (2 of 1916) S. 48
(2) - Proceedings for removal of Chairman
- Cessation of financial and administrative
powers - It is not necessary to permit
Chairman concerned to participate before
the inquiry committee to contest the
allegation - person concerned must be
confronted with show cause containing
charges, so as to enable him to respond -
It is only after receipt of the reply that
State Government can pass an order, on
2 All. Jagdish Prasad Gupta Vs. State of U.P. & Ors.
315
the available materials, as to whether
facts
of
the
case
warrant
urgent
invocation
of
ceasing
of
administrative/financial
power
of
the
Chairman- State Government is to only
prima facie record its satisfaction as to
whether administrative/financial power is
to be ceased or not - Not required that
person concerned be permitted. (Para 7, 8)

Writ Petition dismissed. (E-4)

List of Cases cited: -

## Text

314 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction, the petitioner should be "an
aggrieved person", and if he does not fulfil
that character, the Court will, in its
discretion, deny him this extraordinary
remedy. The stand taken by the appellant
therein that the setting up of a rival cinema
house in the town would adversely affect
his commercial interest, causing pecuniary
harm and loss of business from competition
was held to be not affecting his legally
protected interest so as to give him
justiciable claim and it was held that
issuance of a writ of certiorari at his
instance
would
eliminate
healthy
competition in business.

7. A similar view was taken in
Mithilesh Garg and others Vs. Union of
India and others4, wherein a challenge to
grant of permit under the Motor Vehicles
Act, 1988 by existing permit holders, was
repelled on the ground that the right under
Article 19 (1) (g) does not extend to
shutting out competition and that more
operators
would
mean
a
healthy
competition and an efficient transport
system.

8. Having regard to the foregoing
discussion, we may reiterate the position
that in normal course it would not be open
to a competitor in business to seek to
prevent a rival from exercising a right to
carry on business. Competition in a trade or
business may be subject to restrictions as
are permissible and as may be imposed by
a law enacted in the interests of general
public. However, independent of any such
restriction, a person cannot claim that no
other person shall carry on business or
trade so as to adversely affect his trade or
business.

9. In order to have the locus standi to
invoke the extraordinary jurisdiction of this
Court under Article 226 of the Constitution,
the petitioner should be "an aggrieved
person". We are of the view that where the
claim of the petitioner is solely to prevent a
rival from exercising a right to carry on
business, he would not have the locus
standi to maintain a writ petition as the
same would essentially be aimed at
eliminating
healthy
competition
in
business.

10. For the aforestated reasons, the
writ petition is liable to be dismissed and it
is accordingly dismissed.
----------
(2021)02ILR A314
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ C No. 22742 of 2020

Jagdish Prasad Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nitin Chandra Mishra, Sri Anoop Trivedi

Counsel for the Respondents:
C.S.C., Sri Islam Ahmad, Sri Vinod Kumar
Sahu

U. P. Municipalities Act (2 of 1916) S. 48
(2) - Proceedings for removal of Chairman
- Cessation of financial and administrative
powers - It is not necessary to permit
Chairman concerned to participate before
the inquiry committee to contest the
allegation - person concerned must be
confronted with show cause containing
charges, so as to enable him to respond -
It is only after receipt of the reply that
State Government can pass an order, on
2 All. Jagdish Prasad Gupta Vs. State of U.P. & Ors.
315
the available materials, as to whether
facts
of
the
case
warrant
urgent
invocation
of
ceasing
of
administrative/financial
power
of
the
Chairman- State Government is to only
prima facie record its satisfaction as to
whether administrative/financial power is
to be ceased or not - Not required that
person concerned be permitted. (Para 7, 8)

Writ Petition dismissed. (E-4)

List of Cases cited: -

1. Hafiz Ataullah Ansari Vs St. of U.P. & ors.
2011 (3) ADJ 502

(Delivered by Hon'ble Pankaj Naqvi, J.
&
Hon'ble Piyush Agrawal, J.)

1. Heard Shri Anoop Trivedi, learned
Senior Advocate, assisted by Shri Nitin
Chandra Mishra, for the petitioner, learned
Standing
Counsel
for
the
State
-
respondents and Shri Vinod Kumar Sahu
for respondent no. 4.

2. The petitioner was elected as
Chairman, Nagar Palika Parishad, Banda
(for short, 'the Parishad') on 01.12.2017. A
complaint was made against the petitioner
and Executive Officer of the Parishad,
alleging irregularities and defalcation of
accounts before the District Magistrate,
Banda/respondent no. 3, who forwarded
the same to the Commissioner of the
Division/respondent
no.
2.
The
Commissioner on 12.06.2019 constituted a
three-member Committee to inquire into
the allegations. The Committee comprised
of Assistant Accounts Officer, SubDivisional
Officer,
Sadar
and
Joint
Development
Commissioner.
The
Committee submitted its report dated
06.08.2019
(first
report)
to
the
Commissioner. It appears that in the
meanwhile,
another
complaint
was
preferred against the petitioner before the
Commissioner, who took cognizance of
the same and referred the same to a single
member committee, comprising of Joint
Development Commissioner, who was the
Chairman of the earlier Committee. The
Joint
Development
Commissioner
submitted a report (second report) dated
21.10.2019
on
15
charges
to
the
Commissioner and the latter forwarded the
same to the State Government vide letter
dated 23.10.2019. The State Government
acting under section 48 of the Uttar
Pradesh Municipalities Act, 1916 (for
short, 'the Act') issued a show cause on 9
charges on 11.02.2020, served on the
petitioner on 07.06.2020. The petitioner
submitted his reply on 12.06.2020. The
State Government under section 48(2) of
the Act, after consideration of the reply,
proceeded
to
cease
the
administrative/financial
power
of
the
petitioner
on
29.10.2020
and
a
consequential order dated 30.10.2020 by
the District Magistrate appointing Deputy
Collector as administrator in the Parishad.

3. Learned Senior Counsel for the
petitioner broadly raised three contentions:-

(i)
The
petitioner
was
not
afforded any opportunity by both the
Committees, depriving him of a valuable
right to contest the allegations;

(ii) failure to furnish the first
report dated 06.08.2019 to the State
Government has occasioned prejudice to
the petitioner; and

(iii) impugned order is based on
non-application of mind as there is no
consideration of the reply of the petitioner.

4. Learned Standing Counsel opposed
the submission.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Section 48 of the Act reads as
under:-

"48. Removal of President.

(1) ...

(2) 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

(b) the President has -

(i)
incurred
any
of
the
disqualifications mentioned in Sections 12D and 43-AA; or

(ii) within the meaning of Section
82 knowingly acquired 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 a President
or as a member in a matter other than a
matter referred to in clauses (a) to (g) of
subsection (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; or

(iv) being a legal practitioner acted
or appeared in any suit or other proceeding
on
behalf
of
any
person
against
the[Municipality]or
against
the
State
Government in respect of nazul land
entrusted
to
the
management
of
the[Municipality]or
against
the
State
Government in respect of nazul land
entrusted
to
the
management
of
the[Municipality], or acted or appeared for
or on behalf of any person against whom a
criminal proceeding has been instituted by or
on behalf of the[Municipality]; or

(v) abandoned his ordinary place
of
residence
in
the
municipal
area
concerned; or

(vi) been guilty of misconduct in
the discharge of his duties; or

(vii) during the current or the last
preceding term of the Municipality, acting
as President or as Chairman of a
Committee, or as member or in any other
capacity whatsoever, whether before or
after the commencement of the Uttar
Pradesh Urban Local Self-Government
Laws (Amendment) Act, 1976, so flagrantly
abused
his
position,
or
so
wilfully
contravened any of the provisions of this
Act or any rule, regulation or bye-law, or
caused such loss of damage to fund or
property of the[Municipality]as to render
him unfit to continue to be President; or

(viii) been guilty of any other
misconduct whether committed before or
after the commencement of the Uttar
Pradesh Urban Local Self-Government
Laws (Amendment) Act, 1976 whether as
President or as[* * *], exercising the
powers of President, or as[* * *], or as
member; or

(ix) caused loss or damage to any
property of the municipality; or

(x) misappropriated or misused of
Municipal found; or

(xi) acted against the interest of
the municipality; or

(xii) contravened the provisions
of this Act or the rules made thereunder; or

(xiii) created an obstacle in a
meeting of the municipality in such manner
that
it
becomes
impossible
for
the
municipality to conduct its business in the
meeting or instigated someone to do so; or

(xiv) wilfully contravened any
order or direction of the State Government
given under this Act; or
2 All. Jagdish Prasad Gupta Vs. State of U.P. & Ors.
317

(xv) misbehaved without any
lawful justification with the officers or
employees of the municipality; or

(xvi) disposed of any property
belonging to the municipality at a price less
than its market value; or

(xvii) encroached, or assisted or
instigated any other person to encroach
upon the land, building or any other
immovable property of the municipality;

it may call upon him to show
cause within the time to be specified in the
notice why he should not be removed from
office.

[Provided that where the State
Government has reason to believe that the
allegations do not appear to be groundless
and the President isprima facieguilty 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 subsection (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].

[* * *]

[* * *]

[(2B) An order passed by the State
Government under sub-section (2-A) shall be
final and shall not be questioned in any
Court.

(3)[* * *]

(4) A President removed under
sub-section (2-A) shall also cease to be a
member of the] [Municipality]and in case
of removal on any of the grounds
mentioned in clause (a) or sub-clause (vi),
(vii) or (viii) of clause (b) of subsection (2)
shall not be eligible for re-election as
President or member for a period of five
years from the date of his removal."

6. The scope of above provision came
to be examined by a Full Bench of this
Court in Hafiz Ataullah Ansari Vs. State of
U.P. & Others [2011 (3) ADJ 502];
wherein, it held as under:-

"133. Our conclusions are as
follows:

(a)There can be proceeding for
removal of president under section 48(2) of
the Municipalities Act without ceasing his
financial and administrative power under
its proviso;

(b)The following conditions must
be satisfied before cessation of financial
and administrative powers of a president of
a Municipality can take place:

(i) The explanation or point of
view or the version of the affected president
should be obtained regarding charges and
should be considered before recording
satisfaction and issuing notice/ order under
proviso
to
section
48(2)
of
the
Municipalities Act;

(ii) The State government should
be objectively satisfied on the basis of
relevant material that:

The allegations do not appear to
be groundless; and The president is prima
facie guilty of any of the grounds under
section 48(2) of the Municipalities Act.

(iii) The show cause notice must
contain the charges against the president;

(iv) The show cause notice should
also indicate the material on which the
objective satisfaction for reason to believe
is based as well as the evidence by which
charges against the president are to be
318 INDIAN LAW REPORTS ALLAHABAD SERIES
proved. Though in most of the cases they
may be the same;

(c)It is not necessary to pass
separate order under proviso to section
48(2) of the Municipalities Act. It could be
included in the notice satisfying the other
conditions under proviso to section 48(2).
In fact it is not even necessary. It comes
into operation by the Statute itself on
issuance of a valid notice under proviso to
section 48(2) of the Municipalities Act.

(d)In case a notice/ order ceasing
financial and administrative powers is held
to be invalid on any ground then this does
not mean that the proceeding of removal
are also invalid. They have to continue and
taken to their logical end. The proceeding
to remove can come to an end only if the
charges on the their face or even taken to
be proved do not make out a case for
removal under section 48(2) of the
Municipalities Act.

(e)It is not necessary to involve
the president with the process of collecting
material or give president the copies of the
material before asking his explanation or
point of view or version of the president to
the charges.

(f)In
the
present
case,
the
impugned
notice/
order
cannot
be
invalidated on the following ground that:

(i)The explanation or point of
view of the petitioner to the charge was not
obtained (as it was asked). However, we
have
not
considered,
whether
his
explanation was considered or not;

(ii)The letters of the SDM and
DM were not given to the petitioner before
obtaining petitioner's explanation or his
point of view to the charges as this was
unnecessary at that stage. In case these
copies were not given along with show
cause notice by the State government, it is
open to the petitioner to ask for the same
and then file an additional reply."

7. A perusal of the above legal
position would indicate that a power is
conferred upon the State Government to
cease the administrative/financial power
under section 48(2) of the Act and the
requirement of law is that the person
concerned must be confronted with show
cause containing charges, so as to enable
him to respond. It is only after receipt of
the reply that State Government can pass an
order ceasing the administrative/financial
power of the Chairman. The object of this
provision is only to enable the State
Government to take a decision on the
available materials as to whether facts of
the case warrant urgent invocation of
ceasing of administrative/financial power.
At this stage, the State Government is to
only prima facie record its satisfaction as to
whether administrative/financial power is
to be ceased or not.

8. In this view of the matter, the
contention of the petitioner that he was not
permitted to participate before the inquiry
committee is of no avail.

9. We carefully examined the contents
of both the reports, the show cause and the
impugned order and find no merit in the
second contention. The reason is that the
first report alleged five charges and the
second report alleged 15 charges. To
recapitulate the report is by a three-member
committee, of which Joint Development
Commissioner was the Chairman and the
second report is by a single-member, i.e.,
the
same
Joint
Development
Commissioner. The Joint Development
Commissioner was fully aware of the
contents of the first report as he was a
Chairman and in the second report, there is
a recital that same charges have already
been inquired into the first report. Thus,
non-supply of the first report cannot be said
2 All. Yamuna Prasad Yadav Vs. State of U.P. & Ors.
319
to have occasioned any prejudice to the
petitioner.

10. The Commissioner was not
obliged to send the first report (three
member) to the State Government for the
simple reason that the Joint Development
Commissioner was the Chairman in both
the Committees and while sending the
second report dated 21.10.2019, he was
aware of contents of the first report. The
matter can be viewed from another
perspective also. The petitioner was put to
show cause on certain charges to which
he, admittedly, responded. If the State has
chosen not to rely on the first report dated
06.08.2019, then how can the petitioner
insist that show cause must be issued on
the basis of first report?

11.

We,
in
view
of
above
factual/legal position, are not impressed
with the plea that the impugned order
suffers from the vice of non-application of
mind.

12. Admittedly, inquiry proceedings
are pending. The pending inquiry before
the State Government is directed to be
concluded as expeditiously as possible,
preferably, within six weeks from the date
a copy of this order is produced before it.

13. The writ petition is dismissed,
subject to above observations.
----------
(2021)02ILR A319
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2019

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.
Writ C No. 26033 of 2019

Yamuna Prasad Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Babu Ram Yadav, Sri Shashi Nandan

Counsel for the Respondents:
C.S.C.

Criminal Law-Code of Criminal Procedure,
1973 (2 of 1974) - S. 154 - Registration of
FIR - against government officer /public
servant, after his retirement - Held - There
is no bar in lodging the FIR against the
public servant who has retired, in case
cognizable offence is disclosed - Lodging
of FIR cannot be refused on the ground
that there is no relationship of Master and
Servant - once public servant retires or
superannuates or ceases to be in his
office, then no sanction of the competent
authority is required to prosecute him for
the offences committed by him under the
colour of his office. (Para 11, 12)

Writ Petition dismissed. (E-4)

List of Cases cited: -

1. Abhay Singh Chautala Vs CBI (2011) 7 SCC
141

2. Lalita Kumari Vs Govt. of U.P. & ors (2014) 2
SCC 1

(Delivered by Hon'ble Shashi Kant Gupta, J.
&
Hon'ble Saurabh Shyam Shamshery, J.)

1. Heard Sri Shashi Nandan, learned
Senior Counsel assisted by Shri Babu Ram
Yadav, learned counsel for the petitioner,
learned Standing Counsel for respondents
and perused the record.

2. The petitioner has retired from the
post of Gram Panchayat Adhikari, Block