# Mahesh Chandra Bharadwaj v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 472
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-12
- **Case number:** Writ - C No. 15941 of 2020
- **Bench:** Surya Prakash Kesarwani, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chandra-bharadwaj-v-state-of-u-p-ors-45618
- **Pages:** 6

## Headnote

(A) Civil law-Uttar Pradesh Municipalities Act,
1916 - Section 4 -procedure for removal of a
President-elected office bearer under Part IXA of the Constitution - accountable to the
electorate-his
removal
has
repercussions
which are of a serious and adverse natureright to hold the post or office is undoubtedly
in terms of the statutory enactment and
proceedings for removal may also be initiated
but only after adhering strictly with the
provisions laid down by the legislature for the
purpose. (Para - 15)
Removal of an elected President(respondent
no.2) from the office of the President of Nagar
Panchayat
and
for
initiating
recovery
proceedings against the said respondent.

Held: - In the case of an elected President
under the the Act, 1916, the procedure for
removal of a President is provided for under
Section 48 of the Act, 1916 and consequently
whenever an issue arises with regard to removal
of the President, the procedure prescribed
under the statutory provision is required to be
strictly followed. (Para-16)

Writ Petition dismissed . (E-7)

List of Cases cited: -

## Text

472 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Further, in compliance and
observance of this order in respect of
similarly placed other public purpose, we
direct that a copy of this judgment be
forwarded
to
Chief
Secretary,
U.P.
Lucknow so that he may issue necessary
instructions in this regard across the State
to all concerned authorities. A compliance
report shall be submitted within three
months, to this Court by way of filing an
affidavit.

33. Subject to above directions and
observations, writ petition is disposed of.
----------
(2020)12ILR A472
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2020

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ - C No. 15941 of 2020

Mahesh Chandra Bharadwaj ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashish Malhotra, Pushpila Bisht

Counsel for the Respondents:
C.S.C.

(A) Civil law-Uttar Pradesh Municipalities Act,
1916 - Section 4 -procedure for removal of a
President-elected office bearer under Part IXA of the Constitution - accountable to the
electorate-his
removal
has
repercussions
which are of a serious and adverse natureright to hold the post or office is undoubtedly
in terms of the statutory enactment and
proceedings for removal may also be initiated
but only after adhering strictly with the
provisions laid down by the legislature for the
purpose. (Para - 15)
Removal of an elected President(respondent
no.2) from the office of the President of Nagar
Panchayat
and
for
initiating
recovery
proceedings against the said respondent.

Held: - In the case of an elected President
under the the Act, 1916, the procedure for
removal of a President is provided for under
Section 48 of the Act, 1916 and consequently
whenever an issue arises with regard to removal
of the President, the procedure prescribed
under the statutory provision is required to be
strictly followed. (Para-16)

Writ Petition dismissed . (E-7)

List of Cases cited: -

1. Bondu Ramaswamy & ors. Vs Bangalore
Development Authority,(2010) 7 SCC 129

2. Paras Jain Vs St. of U.P. & ors., 2016 (1) ADJ (1) (FB)

3. Ravi Yashwant Bhoir Vs District Collector,
Raigad & ors. , (2012) 4 SCC 407

4. Bachhittar Singh Vs St. of Punj. & anr., AIR
1963 SC 395

5. U.O.I. Vs H.C. Goel, AIR 1964 Sc 364

6. Indian National Congress (I) Vs Institute of
Social Welfare & ors., (2002) 5 SCC 685

7. Tarlochan Dev Sharma Vs St. of Punj. & ors.,
(2001) 6 SCC 260

8. Sharda Kailash Mittal Vs St.of M.P. & ors.,
(2010) 2 SCC 319

(Delivered by Hon'ble Surya Prakash Kesarwani, J.
& Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard Sri Ashish Malhotra, learned
counsel for the petitioner and learned
Standing Counsel for the State respondents.

2. The present writ petition has been
filed by the petitioner asserting to be an
elected member of the Nagar Panchayat,
12 All. Mahesh Chandra Bharadwaj Vs. State of U.P. & Ors.
473
Maswasi, Rampur, seeking a direction for
initiation of proceedings for the removal of
respondent no.2 from the office of the
President of Nagar Panchayat and for
initiating recovery proceedings against the
said respondent.

3. It is sought to be contended that
certain complaints had been made by the
petitioner against respondent no.2 relating
to award of some contracts and also with
regard to some other alleged financial
irregularities regarding which a report is
also stated to have been submitted by
respondent no.4.

4.

Learned
Standing
Counsel
appearing for the State respondents has
pointed out that for the purposes of removal
of an elected President, a complete
procedure has been prescribed under the
Uttar Pradesh Municipalities Act, 19161 as
per terms of the provisions under Section
48 thereof, and in view of the aforesaid, the
writ petition filed by the petitioner, who is
an elected member of the Nagar Panchayat,
seeking removal of respondent no.2 from
the office of the President of Nagar
Panchayat and initiating proceedings for
recovery against the said respondent, would
not be maintainable.

5. In order to appreciate the rival
contentions, the relevant provisions under
law may be adverted to.

6. Part IX-A of the Constitution of
India2 relating to Municipalities was
inserted
by
the
Constitution
(74th
Amendment) Act, 1992 for establishment
of the Municipalities with a view to provide
for setting up of democratic institutions at
the
grassroot
level.
The
object
of
introducing Part IX-A in the Constitution
was that in many states the local bodies
were not working properly and the timely
elections were not being held and the
nominated bodies were continuing for long
periods. Elections had been irregular and
many times unnecessarily delayed or
postponed and the elected bodies had been
superseded or suspended without adequate
justification. The new provisions were
added in the Constitution with a view to
restore the rightful place of local bodies in
political governance. It was considered
necessary to provide a constitutional status
to such bodies to ensure the regular and fair
conduct of elections.

7. The object and purpose of the
aforesaid Part IX-A of the Consitution was
explained in Bondu Ramaswamy and
others
vs.
Bangalore
Development
Authority3 and it was stated as follows :-

"44.
Provisions
relating
to
composition of municipalities, constitution
and composition of Ward Committees,
reservation of seats for weaker sections,
duration
of
municipalities,
powers,
authority, responsibilities of municipalities,
power
to
impose
taxes,
proper
superintendence and centralised control of
elections to municipalities, constitution of
committees for district planning and
metropolitan planning, were either not in
existence or were found to be inadequate or
defective in the State laws relating to
municipalities.

45. Part IX-A seeks to strengthen
the democratic political governance at grass
root level in urban areas by providing
constitutional status to municipalities, and
by laying down minimum uniform norms
and by ensuring regular and fair conduct of
elections. When Part IX-A came into force,
the provisions of the existing laws relating
to municipalities which were inconsistent
with or contrary to the provisions of Part
474 INDIAN LAW REPORTS ALLAHABAD SERIES
IX-A would have ceased to apply. To
provide continuity for some time and an
opportunity to the State Governments
concerned
to
bring
the
respective
enactments relating to municipalities in
consonance with the provisions of Part IXA in the meanwhile, Article 243-ZF was
inserted. The object was not to invalidate
any law relating to city improvement trusts
or Development Authorities which operate
with reference to specific and specialised
field of planned development of cities by
forming layouts and making available
plots/houses/apartments to the members of
the public."

8. The 74th Amendment Act, 1992
was brought into strengthen the system of
municipal bodies in urban areas with an
idea to place the local self-government in
urban areas on a sound footing. As per the
73rd and the 74th Amendments, the
Panchayats and the Municipalities as
institutions of local self-government, have
been given a constitutional status with their
role
and
position
defined
by
the
Constitution as also their powers, duties
and responsibilities. These institutions of
self governance are no longer mere
administrative agencies of the State but
have been conferred with a degree of
autonomy to ensure that democracy finds
expression at the grassroot level. Both the
73rd and 74th Amendments represent
measures for decentralisation of power and
greater participation of people in self-rule
with a view to provide for democratic
governance at the grassroot level through
these institutions.

9. The manner and extent of control
which the agencies of the State exercise
over these institutions of local selfgovernment and the necessity to interpret
the relevant statutory provisions in a
manner that fosters the attainment of
Constitutional objectives was underlined by
a Full Bench of this Court in Paras Jain
vs. State of U.P. and others4 and it was
held as follows :-

"15. The extent of control which
the agencies of the State exercise over these
institutions of local self-Government must
necessarily
conform
to
constitutional
standards. State legislation of a regulatory
nature must be interpreted in a manner that
fosters the attainment of constitutional
objectives. The Court, consistent with the
high constitutional purpose underlying Parts
IX and IXA of the Constitution, must give
expression to the autonomy expected to be
wielded by the constitutionally recognized
levels of local self-Government. Hence, while
interpreting state legislation, the need to
conform to constitutional parameters must be
borne in mind. An interpretation of state
legislation which will dilute the autonomy of
institutions of local self-Government must, to
the extent possible, be avoided. Similarly, an
interpretation which would result in reducing
the panchayats and municipalities to a role of
administrative
subordination
must
be
eschewed. Consequently, where an issue
arises in regard to the removal of an elected
head of a municipality, as in the present case,
the procedure prescribed by the law must be
followed. The law itself must be interpreted
in a manner that would render it fair, just and
reasonable in its operation and effect.
Moreover, in areas where the law is silent, an
effort must be made by the Court in the
process of interpretation to ensure that the
procedure for removal is just, fair and
reasonable to be consistent with the mandate
of Article 14."

10. The removal from office of
elected office bearers on grounds of
misconduct
in
the
context
of
the
12 All. Mahesh Chandra Bharadwaj Vs. State of U.P. & Ors.
475
Constitutional status conferred by the 74th
Amendment Act, 1992 was the subject
matter of consideration in Ravi Yashwant
Bhoir vs. District Collector, Raigad and
others5 and it was held that an elected
official cannot be permitted to be removed
unceremoniously without following the
procedure prescribed by law by the State by
adopting
a
casual
approach.
The
observations made in the judgement in this
regard are being extracted below :-

"21. The municipalities have been
conferred
Constitutional
status
by
amending the Constitution vide 74th
Amendment Act, 1992 w.e.f. 1.6.1993. The
municipalities have also been conferred
various powers under Article 243-B of the
Constitution.

22.
Amendment
in
the
Constitution by adding Parts IX and IX-A
confers upon the local self-government a
complete
autonomy
on
the
basic
democratic unit unshackled from official
control. Thus, exercise of any power
having
effect
of
destroying
the
Constitutional institution besides being
outrageous is dangerous to the democratic
set-up of this country. Therefore, an elected
official cannot be permitted to be removed
unceremoniously without following the
procedure prescribed by law, in violation of
the provisions of Article 21 of the
Constitution, by the State by adopting a
casual
approach
and
resorting
to
manipulations to achieve ulterior purpose.
The Court being the custodian of law
cannot tolerate any attempt to thwart the
Institution.

23.The democratic set-up of the
country has always been recognized as a
basic feature of the Constitution, like other
features e.g. supremacy of the Constitution,
rule of law, principle of separation of
powers, power of judicial review under
Articles
32,
226
and
227
of
the
Constitution
etc.
(Vide:
Kesavananda
Bharati v. State of Kerala, AIR 1973 SC
1461, Minerva Mills Ltd. v. Union of India,
AIR 1980 SC 1789, Union of India v. Assn.
for Democratic Reforms, AIR 2002 SC
2112; Special Reference No. 1 of 2002
(Gujarat Assembly Election Matter), AIR
2003 SC 87; and Kuldip Nayar v. Union of
India, AIR 2006 SC 3127)."

11. Referring to the Constitution
Bench judgments in Bachhittar Singh vs.
State of Punjab and another6 and Union
of India vs. H.C. Goel7 and also Indian
National Congress (I) vs. Institute of
Social Welfare and others8 the settled
legal position that removal of a duly elected
member on the basis of proved misconduct
is a quasi judicial proceeding, was
reiterated.

12. In a case relating to the removal
of a President of a Municipal Council under
the Punjab Municipal Act, 1911, in
Tarlochan Dev Sharma vs. State of
Punjab and others9, it was held that
removal from an elected office is a serious
matter and that a case for removal must
clearly be made out before action could be
justified. The right of a duly returned
candidate holding and enjoying an office
and discharging related duties was held to
be a valuable statutory right and in view
thereof, it was stated that since an order of
removal has the effect of curtailing the term
of an elected office holder and casting a
stigma upon him, the grounds under the
relevant statutory provision for removal
must be clearly made out before any such
order is passed. The relevant observations
made in this regard are as follows :-

"7. In a democracy governed by
rule of law, once elected to an office in a
476 INDIAN LAW REPORTS ALLAHABAD SERIES
democratic institution, the incumbent is
entitled to hold the office for the term for
which he has been elected unless his election
is set aside by a prescribed procedure known
to law. That a returned candidate must hold
and enjoy the office and discharge the duties
related therewith during the term specified by
the relevant enactment is a valuable statutory
right not only of the returned candidate but
also of the constituency or the electoral college
which he represents. Removal from such an
office is a serious matter. It curtails the
statutory term of the holder of the office. A
stigma is cast on the holder of the office in
view of certain allegations having been held
proved rendering him unworthy of holding the
office which he held. Therefore, a case of
availability of a ground squarely falling within
Section 22 of the Act must be clearly made
out. A President may be removed from office
by the State Government, within the meaning
of Section 22, on the ground of "abuse of his
powers" (of President), inter alia. This is the
phrase with which we are concerned in the
present case. "

13. Taking a similar view in Sharda
Kailash Mittal vs. State of Madhya
Pradesh and others10, it was reiterated
that
removal
of
a
holder
from
a
democratically elected office is an extreme
step which must be resorted to only in
grave and exceptional circumstances and
not for minor irregularities in discharge of
duties. It was observed thus :-

"26.There
are
no
sufficient
guidelines in the provisions of Section 41A as to the manner in which the power has
to be exercised, except that it requires that
reasonable opportunity of hearing has to be
afforded to the office-bearer proceeded
against. Keeping in view the nature of the
power and the consequences that flows on
its exercise it has to be held that such
power can be invoked by the State
Government only for very strong and
weighty reason. Such a power is not to be
exercised
for
minor
irregularities
in
discharge of duties by the holder of the
elected post. The provision has to be
construed in strict manner because the
holder of office occupies it by election and
he/she is deprived of the office by an
executive order in which the electorate has
no chance of participation."

14. The decisions referred to above
have laid emphasis on the importance of
the role and position of elected office
bearers
under
Part
IX-A
of
the
Constitution. It has been consistently held
that these elected office bearers represent
the will of the electorate and their removal
affects the rights of the electorate to be
governed by their elected representatives.

15. An elected office bearer under
Part IX-A of the Constitution, in our
considered view, is accountable to the
electorate
and
his
removal
has
repercussions which are of a serious and
adverse nature. The right to hold the post or
office is undoubtedly in terms of the
statutory enactment and proceedings for
removal may also be initiated but only after
adhering strictly with the provisions laid
down by the legislature for the purpose.

16. In the case of an elected President
under the the Act, 1916, the procedure for
removal of a President is provided for
under Section 48 of the Act, 1916 and
consequently whenever an issue arises with
regard to removal of the President, the
procedure prescribed under the statutory
provision is required to be strictly followed.

17. Learned counsel for the petitioner
has not been able to dispute the aforesaid
12 All. Gautam Yadav Vs. State of U.P. & Ors.
477
legal position that the procedure for
removal of an elected President of Nagar
Panchayat is to be in accord with the
provisions of Section 48 of the Act,1916.

18. Having regard to aforesaid, we are
not inclined to entertain the present writ
petition for the reliefs prayed for, and the
writ petition accordingly stands dismissed.

19. It would be open to the petitioner
to pursue the remedies as may be available
to him in accordance with the statutory
provisions in terms of the Act,1916.
----------
(2020)12ILR A477
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE PANKAJ BHATIA, J.

Writ - C No. 15983 of 2020

Gautam Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Maurya, Sri Jawahar Lal Maurya

Counsel for the Respondents:
C.S.C.

(A) Civil law - 'socio-beneficial scheme' -
'Mukhayamantri Kisan and Sarvahit Bima
Yojna' - for the benefit of marginalised
sections
of
the
society
-
Scheme
formulated by the State as a Welfare State
and the insurance premium is paid by the
State to the Insurance Company, who in
turn issue the policies - provisions of the
Limitation Act are applicable to the suits,
appeals
and
the
applications
as
enumerated and before the Courts only -
any policy decision which is against any
statute, or can be faulted on the ground of
arbitrariness and unfairness and if the
same is dehors the provisions of the acts
or legislation can be interfered with by the
Court. (Para - 21,22,30,32)

(B) Insurance Act, 1938 - Section 46 -
Application of the law in force in India to
policies issued in India - mandate -
statutory right as contained in Section 46
to sue for relief in respect of the policy in a
court - 'law of the land' - which is binding
on all insurance contracts by virtue of
Section 46 providing three years' of
limitation in the event of a suit being filed
has to be accepted as a reasonable period
within which a claim for insurance and a
claim against the wrongful rejection of the
insurance can be preferred. (Para 23,24,34)

Father of the petitioner died in an accident -
being a farmer having agricultural holdings was
entitled to the grant of compensation under the
Mukhyamantri Kisan Avam Sarvahit Bima -
Petitioner claims to have applied for grant of
compensation - District Magistrate rejected the
claim of the petitioner under the Mukhyamantri
Kisan Avam Sarvahit Bima on the ground that
the claim is time barred. (Para - 2,3)

Held: - The limitation prescribed under the
Scheme is wholly unreasonable and arbitrary
and is liable to be struck out as it is well settled
that even while testing the validity of an
administrative action, the same can be tested
on the touch stone of the Article 14 of the
Constitution
of
India.
A
''socio-beneficial'
Scheme has to be interpreted in a manner so as
to advance the purpose for which the Scheme is
formulated and not in a manner so as to defeat
the entire purpose of the Scheme. (Para - 35)

Writ Petition allowed . (E-7)

List of Cases cited: -

1. Brij Mohan Lal Vs U.O.I. & ors., (2012) 6 SCC
502

2. Mohd. Abdul Kadir Vs DG of Police, (2009) 6
SCC 611 : (2009) 2 SCC (L&S) 227

(Delivered by Hon'ble Pankaj Bhatia, J.)