# Nand Kumar Maurya v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-16
- **Case number:** Writ-C No. 31925 of 2021
- **Bench:** Anjani Kumar Mishra, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-kumar-maurya-v-state-of-u-p-ors-48359
- **Pages:** 16

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226, - U.P. Municipalities Act, 1916
- Sections 48, 48 (2), 48(2)(b) & 82 - Writ
Petition - challenging the Show Cause
Notice and impugned order of ceasing the
Financial & Administrative power of the
petitioner who is the President of a Nagar
Panchayat - on account of a complaint in
respect of irregularities in purchase of
dustbins - 1st enquiry report submitted by
SDM - petitioner was exonerated
-
Additional
Commissioner
without
providing any opportunity of hearing
directed for fresh enquiry - enquiry report
submitted by another SDM - show cause
notice was issued - petitioner submitted
written explanation as well as produced
the enquiry committee constituted by the
DM - report forwarded before Addl. Chief
Secretary - impugned notice - petitioner
replied - impugned order passed by the
St. Govt. - writ petition - while passing
the impugned orders St. Govt. neither
objectively considered the material &
reply of the petitioner nor discussed the
same - orders issued under section 48(2)
of the Act, for cessation of financial &
administrative powers should reflects the
'due application of mind' applied by the
authority concern - writ petition allowed -
impugned order is set aside - matter
remitted
back
to
proceed
afresh
in
accordance with law.(Para - 28, 31, 35, 36)

Writ Petition allowed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,743 of 55,516. This is a partial read: ask again with offset=39743 for what follows._

4 All. Nand Kumar Maurya Vs. State of U.P. & Ors.
865
(2022)04ILR A865
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ-C No. 31925 of 2021

Nand Kumar Maurya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Udayan Nandan, Sri Shashi Nandan (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Akhilesh Kumar, Narendra Kumar, Sri
Veer Singh

Civil Law - Constitution of India, 1950 -
Article 226, - U.P. Municipalities Act, 1916
- Sections 48, 48 (2), 48(2)(b) & 82 - Writ
Petition - challenging the Show Cause
Notice and impugned order of ceasing the
Financial & Administrative power of the
petitioner who is the President of a Nagar
Panchayat - on account of a complaint in
respect of irregularities in purchase of
dustbins - 1st enquiry report submitted by
SDM - petitioner was exonerated
-
Additional
Commissioner
without
providing any opportunity of hearing
directed for fresh enquiry - enquiry report
submitted by another SDM - show cause
notice was issued - petitioner submitted
written explanation as well as produced
the enquiry committee constituted by the
DM - report forwarded before Addl. Chief
Secretary - impugned notice - petitioner
replied - impugned order passed by the
St. Govt. - writ petition - while passing
the impugned orders St. Govt. neither
objectively considered the material &
reply of the petitioner nor discussed the
same - orders issued under section 48(2)
of the Act, for cessation of financial &
administrative powers should reflects the
'due application of mind' applied by the
authority concern - writ petition allowed -
impugned order is set aside - matter
remitted
back
to
proceed
afresh
in
accordance with law.(Para - 28, 31, 35, 36)

Writ Petition allowed. (E-11)

List of Cases cited: -

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

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

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. The present writ petition is
preferred by the petitioner challenging the
show cause notice dated 11th November,
2021 issued by the Additional Chief
Secretary, Nagar Vikas, U.P. at Lucknow,
whereby the petitioner has been show
caused as to why he may not be removed
from the office of the President, Nagar
Panchayat, Khamariya, District Bhadohi
and further by the impugned order dated
11th November, 2021 the financial and
administrative powers of the petitioner has
been ceased.

2. The brief facts of the case is that
the petitioner is the President, Nagar
Panchayat, Khamariya, District Bhadohi. In
respect of the alleged irregularities in
purchase of dustbins in Nagar Panchayat,
Khamariya, District Bhadohi, an enquiry
was conducted by the Sub Divisional
Magistrate, Aurai, District Bhadohi and a
report was submitted on 24th June, 2019.
The aforesaid enquiry was conducted on
the basis of the complaint made by one Sri
Mainuddin Ansari, Sabhasad, Ward No. 12,
Akbarpur and other Sabhasad, Nagar
Panchayat, Khameriya, District Bhadohi.
866 INDIAN LAW REPORTS ALLAHABAD SERIES
The Sub Divisional Magistrate by report
dated 24th June, 2019 did not find any
irregularity in the purchase of the dustbins
and as such, the complaint against the
petitioner was shelved. The aforesaid report
dated 24th June, 2019 was forwarded by
the Additional District Magistrate to the
Commissioner,
Vindhyanchal
Mandal,
Mirzapur by his communication dated 15th
July, 2019. Thereafter, another enquiry was
ordered by the Additional Commissioner,
Mirzapur on two issues, one relating to the
allegations with regard to purchase of
dustbins without following the relevant
provisions of law and second that the
dustbins were purchased from a firm
owned by the daughter in law of the brother
of the President-petitioner. The aforesaid
enquiry was conducted by the Sub
Divisional Magistrate, Gyanpur and the
enquiry report was submitted on 19th
October, 2019. On the basis of the
aforesaid, the notice was issued by the
respondents to the petitioner on 3rd
September, 2020 calling upon the petitioner
to give explanation with respect to the
allegations pursuant to the abovementioned
enquiry report. In pursuance thereof, the
petitioner
has
submitted
his
written
explanation
before
the
respondent
authorities on 13th October, 2020. The
District Magistrate on 21st November,
2020 has submitted his reply to the
explanation submitted by the petitioner on
13th October, 2020 and thereafter the
personal hearing was also accorded to the
petitioner on 17th March, 2021 wherein
also
the
petitioner
submitted
his
explanation dated 16th March, 2021 before
the Additional Chief Secretary, Nagar
Vikas-respondent no. 2.

3. It further transpires that after the
hearing and the presentation of the
submission by the petitioner on 17.03.2021,
the explanation/written submissions of the
petitioner
were
sent
to
the
District
Magistrate concerned on 13th April, 2021
and thereafter the District Magistrate has
submitted report dated 7th June, 2021 of
Committee. The aforesaid report dated 7th
June, 2021 was against the petitioner and
on the aforesaid basis, the impugned show
cause notice dated 11th November, 2021
has been issued by the Additional Chief
Secretary, Nagar Vikas-respondent no. 2
and further the financial and administrative
powers of the petitioner has been ceased.

4. Heard Sri Shashi Nandan, learned
Senior Counsel assisted by Sri Udayan
Nandan, Advocate, learned counsel for the
petitioner, learned Standing Counsel for the
State-respondents and Sri Veer Singh,
learned counsel for the complainantrespondent no. 6.

5. It is submitted by learned counsel
for the petitioner that the petitioner is the
President
of
the
Nagar
Panchayat,
Khamariya, District Bhadohi and he has
been issued show cause notice in terms of
Section 48 (2) of the U.P. Municipalities
Act, 1916 and also by the impugned notice
dated
11th
November,
2021
his
administrative and financial powers have
been ceased by respondent authority. It is
also submitted on behalf of petitioner that
while passing the impugned notice and
ceasing of the administrative and financial
powers
of
the
petitioner,
the
reply
submitted by the petitioner has not been
considered
by
the
Additional
Chief
Secretary, Nagar Vikas - respondent no. 2
and further the respondent authority while
passing the impugned order has also failed
to take into consideration earlier report
dated 24th June, 2019 which was in favour
of the petitioner. It is also the case of the
petitioner that after the arguments were
4 All. Nand Kumar Maurya Vs. State of U.P. & Ors.
867
heard on 17th March, 2021 and the written
explanation dated 16th March, 2021 was
submitted by the petitioner, the respondent
authorities has invited a report from the
District Magistrate concerned in respect of
the explanation and argument of the
petitioner and the District Magistrate in
pursuance thereof had formed a four
member
committee
comprising
of
Additional District Magistrate, District
Information Officer-NIC, Finance and
Audit
Officer,
Bhadohi
and
EDM,
Bhadohi. On the basis of the aforesaid, the
District Magistrate by his letter dated 7th
June, 2021 has submitted a enquiry report
before the Principal Secretary, Nagar
Vikas. It is submitted by the learned
counsel for the petitioner that prior to
submission of the report dated 7th June,
2021, no opportunity of hearing was
granted by the aforesaid committee nor any
opportunity of hearing was granted at the
level of the District Magistrate. It is also
submitted that prior to passing of the
impugned order, the copy of the aforesaid
report dated 7th June, 2021 has also not
been served on the petitioner nor the
petitioner has been granted opportunity to
file any objection to the aforesaid report
dated 7th June, 2021. It is also urged that
while passing the impugned order, the
respondent authorities has relied upon the
report dated 7th June, 2021 against the
petitioner
without
considering
the
explanation submitted by the petitioner in
response to the allegations against the
petitioner. It is urged on behalf of the
petitioner that the impugned order is
arbitrary, without application of mind and
without giving any reasons has ceased the
financial and administrative powers of the
petitioner.

6.

Learned
Standing
Counsel
appearing for the State-respondents and Sri
Veer Singh, learned counsel appearing on
behalf of the respondent no. 6 has
submitted
that
the petitioner
is
the
Chairman of Nagar Panchayat, Khameriya,
District Bhadohi and allegations with
respect to misappropriation of funds of
Nagar Panchayat for purchase of articles
without
following
proper
procedure
prescribed is levelled against the petitioner.
In
this
respect,
the
Sub
Divisional
Magistrate, Gyanpur has submitted an
enquiry report dated 19th October, 2019
indicting the petitioner in respect of the
allegations of misappropriation of funds.
The aforesaid report dated 19th October,
2019 was forwarded by the Additional
District Magistrate to the Commissioner
and
the
same
has
thereafter
being
forwarded to the State Government. The
State Government consequently has issued
letter dated 3rd September, 2020 to the
petitioner calling for an explanation. The
petitioner submitted his reply on 13th
October, 2020 and the District Magistrate
has thereafter submitted the explanation on
21st November, 2020. It is also submitted
that the petitioner has also submitted his
reply on 16th March, 2021 before the State
Government and the petitioner was granted
opportunity of hearing by the State
Government
on
17th
March,
2021.
Thereafter show cause notice dated 11th
November, 2021 has been issued to the
petitioner
and
the
financial
and
administrative powers of the petitioner has
been ceased under Section 48 (2) of the
U.P.
Municipalities
Act,
1916.
The
petitioner was given full opportunity of
hearing and thereafter the impugned order
has been passed by the State Government.
It is also urged on behalf of the respondents
that while passing impugned order, the
reply of the petitioner has been considered
and the authority concerned has prima facie
found a case against the petitioner and as
868 INDIAN LAW REPORTS ALLAHABAD SERIES
such, the financial and administrative
powers of the petitioner has been ceased. A
notice has been issued to the petitioner in
terms of Section 48 (2) of the U.P.
Municipalities Act, 1916. On the aforesaid
basis, it is submitted that the present writ
petition has no force and as such liable to
be dismissed.

7. The controversy involved in the
present writ petition revolves around
Section 48 (2) of the U.P. Municipalities
Act, 1916 and the same is quoted
hereunder:-

"48. Removal of President. - (1)
[Omitted]

(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 12-D 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 [* * *], 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
SelfGovernment
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
4 All. Nand Kumar Maurya Vs. State of U.P. & Ors.
869

(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

(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 is prima facie guilty on
any of the grounds of this sub-section
resulting in the issuance of the show-cause
notice and proceedings under this subsection 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
sub-section (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."

8. In order to appreciate the
contentions urged on behalf of the parties,
it would be appropriate to examine the
charges levelled against the petitioner and
the response submitted by the petitioner in
respect of the charges levelled against the
petitioner.

9. The first charge against the
petitioner is that in the process of purchase
of dustbins the comparison was not made
between the dustbin of same capacity but
the comparison was made with dustbin of
higher capacity. It is also alleged that in
case the dustbin with regard to sanction
capacity was not available on the GEM
portal then in accordance with the order
dated 12th September, 2018 of the
Additional District Magistrate, the dustbin
ought to have been purchased by way of etender.

10. The petitioner in respect of the
first charge submitted his reply to the effect
that after the selection of the capacity of the
dustbin on the GEM portal, the other
capacity of dustbin was being shown in the
category of the sanctioned capacity of
dustbin, was not reflected on the buyer's
portal. The process of comparison of the
dustbin of various capacity is the sole
prerogative of the GEM portal and the
GEM portal after completion of the
comparison publishes the final list. It is not
possible for the buyer to find out the
capacity of dustbin which were being
compared. In the GEM portal it is not
possible to purchase unless the comparison
process and the L1 process is completed on
the aforesaid portal. The GEM portal
further prepared the contract, sanction
order and other documents on automation
basis and the President/petitioner has no
role in the aforesaid process. The purchases
have been made from the GEM portal and
870 INDIAN LAW REPORTS ALLAHABAD SERIES
as such there are no irregularities in the
purchase of the dustbin and no financial
loss has been made to the Nagar Panchayat.

11. The second charge against the
petitioner is to the effect that the
Government
Order
No.
G.F.R./2017
provided that purchases to an amount of
Rs. 30 Lacs can be made directly from the
GEM portal. The purchases made by the
Nagar Panchayat in respect of various
categories of dustbins were within the limit
of Rs.30 Lacs individually however, if the
amount of all the categories of dustbins are
added together the same would be more
than Rs. 30 Lacs limit fixed by the
aforesaid Government Order. One firm was
given order for various categories of
dustbin and the aforesaid order in total
amounted to more than Rs. 30 Lacs. No
information in this respect was given to the
District Magistrate nor any sanction was
taken by the Nagar Panchayat in this
respect and as such irregularities have been
committed by the petitioner.

12. The petitioner in response to the
second charge submitted that in the
Government Order dated 23rd August,
2017 it is provided that for an amount from
Rs.50,000/- to Rs.30,00,000/- the purchases
can be made from the GEM portal on the
basis of the lowest price offered. The
purchases have been made after obtaining
necessary
sanction
from
the
District
Magistrate and in accordance with the
abovementioned Government Order. It was
also the defence of the petitioner that the
work pertaining to upload of purchase
order on the GEM portal and acceptance of
the work order is within the domain of the
Executive Officer, Nagar Panchayat. The
concerned authority in respect of the
alleged purchase is the Executive Officer,
Nagar Panchayat. It was also the defence of
the petitioner that the Government Order
did not provide that the value of all the
purchases of various categories were
required to be added and thereafter the
purchases are to be affected. In the present
case, the purchases have been made in
respect of various categories by means of
different contract proposal and the sanction
also is also made separately and the
payments have been made against the
various
categories
separately
by
the
authorised officer being the Executive
Officer, Nagar Panchayat. The petitioner
had no role in the purchase of the aforesaid
dustbin. The purchase of various capacity
of dustbin which have been purchased by
separate order on the GEM portal could not
have been clubbed together.

13. The third charge against the
petitioner pertains to the allegation that the
purchase of dustbins was made by the
Nagar Panchayat from the firm of which
the proprietor was the daughter-in-law of
the brother of the petitioner and as such is
in violation of Section 82 of the Uttar
Pradesh Municipalities Act, 1916 as the
petitioner has interest in the contract
awarded for purchase of dustbin to the
above-mentioned firm.

14. The explanation given by the
petitioner in respect of the third charge is to
the effect that the firm Shree Hari Impex is
already registered on the GEM portal and
the
purchases
have
been
made
in
accordance with the Government Order
dated 23rd August, 2017 after approval of
the District Magistrate from the GEM
portal. It was also submitted that the
aforesaid firm is a proprietorship firm and
the petitioner has no interest or connection
with the aforesaid firm and the payments
were made to the aforesaid firm after the
scrutiny by the committee constituted by
4 All. Nand Kumar Maurya Vs. State of U.P. & Ors.
871
the District Magistrate. It was also stated
that at the level of the petitioner, no
proceedings were undertaken for selection
of the aforesaid firm for purchase of the
dustbin and the aforesaid selection was
made from the GEM portal on which the
petitioner has no control. The selection of
the aforesaid firm was made by the GEM
portal on automation basis to the lowest
bid.

15. The Nagar Panchayat in question
is a unit of local self-government. The
concept of a local self-government paves
the way for a proper delineation of
functions and powers of the latter, for the
smooth
flow
of
funds
from
State
Governments and also ensure community
involvement in activities. The Nagar
Panchayat is constituted under the Uttar
Pradesh Municipalities Act, 1916. The
aforesaid Act further provides that the
members of the Nagar Panchayat shall be
on the basis of electoral representative. The
aforesaid Act under Section 43 also
provides that the President of the Nagar
Panchayat shall be elected on the basis of
adult suffrage by the electors of the Nagar
Panchayat.
By
means
of
73rd
Constitutional
Amendment
the
Municipalities have been accorded the
constitutional status.

16. The section 48 of the Uttar
Pradesh Municipalities Act, 1916 provides
for the removal of the President. The
grounds on which the President can be
removed has been envisaged under Section
48 (2) of the Uttar Pradesh Municipalities
Act, 1916. It provides that where the State
Government has reason to believe that
there has been failure on the part of the
President in performing his duties or the
President has committed any misconduct
provided under Section 48(2)(b), then he
can be called upon to show cause as to why
he should not be removed from the office
of the President.

17. The proviso to Section 48(2) of
the Uttar Pradesh Municipalities Act, 1916
provides for cessation of financial and
administrative powers under the specified
conditions. The aforesaid provision does
not envisage cessation of financial and
administrative powers on merely issuance
of notice under Section 48(2) of the
aforesaid Act. The provision requires that
where the State Government has reason to
believe that the allegations do not appear to
be groundless and the President is prima
facie guilty on any of the grounds of subsection 2 of Section 48 resulting in issuance
of show cause notice containing charges,
the State Government can cease the
financial and administrative powers of the
President unless he is exonerated of the
charges mentioned in the show cause notice
and finalisation of proceedings.

18. It is further to be noted that during
the
cessation
of
the
financial
and
administrative powers of the President, the
proviso to Section 48(2) of the Act further
provides that the aforesaid powers would
be performed and discharged by the
District Magistrate or an officer nominated
by him not below the rank of a Deputy
Collector. It is to be seen that the powers
under the proviso to Section 48(2) of the
Uttar Pradesh Municipalities Act, 1916 will
result in transfer of the powers of the
President from an elected representative to
an executive authority, who is not elected
by the electoral College of the Nagar
panchayat. In this manner, the cessation of
the administrative and financial powers of
the President have grave consequences as
the elected representative power are ceased
and handed over to an executive authority
872 INDIAN LAW REPORTS ALLAHABAD SERIES
who is not directly answerable to the
electoral College.

19. Under the present constitutional
framework, the emphasis has been to set up
democratic institutions for governance of
the people of the country and all decisions
are rooted through democratic elected
representatives. The executive authority has
been imparted with the duty to implement
the decisionsand policy framed by the
elected representatives. Further, the elected
representatives (in higher hierarchy) under
the Constitution can be removed by a
special process either by way of no
confidence
motion
or
by
way
of
impeachment and in this manner a
protection is provided to the elected
representative so that the executive may not
usurp
the
office
of
the
elected
representative by removing him except by
way of no confidence motion or by way of
impeachment. It is to be seen that under the
constitutional
scheme,
the
elected
representatives have been insulated from
being removed from the office by the
executive. However, in the case of the
President of the Nagar Panchayat under the
Uttar Pradesh Municipalities Act, 1916, the
power to remove the President of the Nagar
Panchayat
is
vested
with
the
State
Government in exercise of powers under
Section
48
of
the
Uttar
Pradesh
Municipalities Act, 1916. Once the power
has been vested with the executive for
removing an elected representative from
the post of the President of Nagar
panchayat,
it
emphasises
a
greater
responsibility of the State Government that
the power is exercised within the four
corners of the Uttar Pradesh Municipalities
Act, 1916 and further keeping into
consideration the constitutional scheme.
While exercising the powers under Section
48(2) of the Uttar Pradesh Municipalities
Act, 1916, the State Government by
ceasing the financial and administrative
powers of the President is taking upon a
drastic step of precluding an elected
representative who is President of the
Nagar panchayat from exercising his
powers as provided under law. The
institution
of
local
self
government
including the Nagar Panchayat have been
specifically constituted for the purpose of
giving powers of governance in the hand of
the citizens of the area through their elected
representatives and once the powers under
the proviso to Section 48 (2) of the Uttar
Pradesh
Municipalities
Act,
1960
is
exercised by the State Government, the
governance comes into the hands of the
executive authority. The aforesaid power
under Section 48 of the Act including the
cessation of administrative and financial
powers of the President are to be exercised
by the State Government fairly and in a
responsible manner so that the democratic
institutions are strengthened. The five
Judges Bench of this Court in Paras Jain
Vs State of U.P. and others, reported in
2016 (1) ADJ 1 (FB) in paragraph 14 has
emphasised on the institution of local selfgovernment
and
decentralisation
of
democratic governance and the same is
quoted hereinbelow :-

"14. Part IX-A of the Constitution
contains provisions in relation to the
panchayats. Part IX-A provides for the
municipalities.
These
provisions
were
introduced
by
the
Seventy-third
and
Seventy-fourth
amendments
to
the
Constitution.
Municipalities
and
panchayats as institutions of local selfGovernment have a constitutional status.
Their role and position are defined by the
Constitution as are their powers, duties and
responsibilities.
They
are
not
mere
administrative agencies of the State but, as
4 All. Nand Kumar Maurya Vs. State of U.P. & Ors.
873
institutions of self-governance, have been
conferred with a degree of autonomy to
ensure that democracy finds expression at
the grassroots of Indian society. The
Constitution
seeks
to
attain
a
decentralisation of democratic governance
through these institutions."

20. It however goes without saying
that the elected representatives has greater
responsibility to exercise the powers under
the Act for the benefit of the public at large
and
in
accordance
with
sound
administrative and financial principles
within the corners of statute. It is the duty
of the elected representative that the public
money is not wasted and that the public
money is expended for the benefit of the
citizens
of
the
municipal
area/nagar
panchyat. The electoral college of the area
concerned has elected its representative to
the Nagar Panchayat so that they will
exercise, the power for benefiting the
public at large and will not involve in any
activity which is detrimental to the society
and not involve in misappropriation of
funds and abuse of the office, which the
electoral representative is holding. It is true
that the electoral representative cannot hide
behind his position of being an electoral
representative and in the garb of the
aforesaid conduct himself in a manner
which is detrimental to the society at large
and to the objectives of the Nagar
Panchayat. The aforesaid misconduct has
further been envisaged under Section 48(2)
of the Uttar Pradesh Municipalities Act,
1916.

21. The removal of the President of
Nagar Panchayat under Section 48 of the
Uttar Pradesh Municipalities Act, 1916 and
cessation
of
the
administrative
and
financial powers of the President is a
drastic step. The aforesaid powers, in fact,
takes away the powers of the elected
representative and confers the said power
on the District Magistrate or other officer
who are the executive officers of the State.
In such circumstances, the interpretation to
the aforesaid provision is to be in
accordance
with
scheme
under
the
constitution and the Government is require
to follow the provisions and the condition
precedent prior to exercise of the power of
cessation of financial and administrative
powers of the President. It is to be borne in
mind that the Nagar Panchayat is a local
self government and it is to be run in
conformity
with
the
constitutional
standards
and
in
this
respect,
the
statute/legislation, which is in the nature of
regulatory framework, must be interpreted
in a manner that fulfils the constitutional
goals and objectives and as such, the State
Government while passing any order under
Section 48 of the Act, is required to pass
such
order
in
conformity
with
the
constitutional scheme and should not dilute
the autonomy of the institution. It is also to
be seen that the cessation of the financial
and administrative powers of the President
while holding an enquiry for removal of the
President under Section 48 of the Act is
detrimental to the public interest in the
sense that an elected representative while
continuing on the post would not be able to
exercise his powers and functions under the
Uttar Pradesh Municipalities Act, 1916 and
such a drastic measure should only to be
adopted where there are serious material
against the President. It is also the duty of
the State Government while exercising
such drastic powers which are having civil
consequences that the procedure adopted is
just, fair and reasonable and in consonance
with Article 14 of the Constitution. In this
reference the five Judges Bench of this
Court in Paras Jain (supra) in paragraph
15 has elucidated the interpretation to be
874 INDIAN LAW REPORTS ALLAHABAD SERIES
accorded to such a provision and the same
is quoted hereinbelow:

"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."

22. In the present case, the question of
interpretation of Section 48(2) of the Act
including the proviso is involved. The
aforesaid Section 48(2) empowers the State
Government to issue show cause notice to
the President as to why he may not be
removed from his office if the State
Government has reason to believe that
there is failure on the part of the President
in
performing
his
duties
or
has
misconducted in accordance with the
provisions of Section 48(2)(b) of the Act.
Further, the State Government under
proviso to Section 48 sub-clause (2) is
further empowered to cease the financial
and administrative powers, functions and
duties of the President, where the State
Government has the reason to believe that
the allegation do not appear to be
groundless and the President is prima facie
guilty on any of the grounds of said section
resulting in issuance of show cause notice.
The aforesaid proceedings for cessation of
financial and administrative powers during
the pendency of the proceedings for
removal of the President under the
aforesaid proviso require to fulfill twin
conditions.

23. The first condition for exercise of
the powers for cessation of administrative
and financial powers of the President is that
the State Government has reason to believe
that the allegations do not appear to be
groundless. It is to be seen that the
aforesaid action of the State Government
should be based on the material before it
and must reflect the application of mind by
the State Government. The cessation of
administrative and financial powers should
be on objective assessment of the authority
concerned based on the material on record
and is distinguishable from the purely
subjective satisfaction. It is also to be seen
that the aforesaid reasonable belief is to be
formed on the basis of relevant facts
available
on
record.
The
aforesaid
provision casts a duty on the State
Government to lay down the factual
4 All. Nand Kumar Maurya Vs. State of U.P. & Ors.
875
foundation and circumstances for coming
to the conclusion that there exist a
reasonable belief that allegations do not
appear to be groundless. In this reference,
the five Judges Bench of this Court in
Paras Jain (supra) in paragraph 27 has
interpreted the expression "reason to
believe"
and
the
same
is
quoted
hereinbelow :-

"27. The formation of a reason to
believe within the meaning of the proviso
must be on objective considerations which
have a rational connection or link to the
material before the State Government.
Fairness requires that this be disclosed to
the President of the municipality before the
consequences in the proviso ensue. The
President must have an opportunity to
explain."

24. The objective consideration which
has rational connection to the material
before the State Government is essential for
fair and just exercise of the power by the
State Government. The State Government
while exercising the power cannot loose
sight
of
the
fact
that
an
elected
representative is being denuded of his
powers under the Municipalities Act, 1916.
The objective assessment/consideration to
the material before the State Government
would ensure that the reasons are disclosed
to the President of the municipality before
the consequences under the proviso ensue.

25. The second condition for exercise
of power under Section 48(2) of the Uttar
Pradesh Municipalities Act, 1916 is that the
President is prima facie guilty on the
grounds of this section and it is thereafter
that the show cause notice can be issued to
the President and the financial and
administrative powers can be ceased. The
prime facie satisfaction of the guilt under
the
aforesaid
provision
postulates
application of mind to the material
available on record before the State
Government
as
well
as
the
explanation/reply
submitted
by
the
petitioner. The formation of a prime facie
opinion by the State Government must be
consistent with the principles of natural
justice. The objective assessment of the
material on record including the reply of
the petitioner will ensure fair and just
exercise of the powers by the State
Government.

26. In this reference, the five Judges
Bench of this Court in Paras Jain (supra)
in paragraph 28 has interpreted the
expression "prima facie" and the same is
quoted hereinbelow :-

"28. The State Government is also
required by the proviso to be of the view
that the President is prima facie guilty on
any of the grounds contained in the subsection which have resulted in the issuance
of the notice to show cause. The
formulation of a reason to believe that the
allegations do not appear to be groundless
and that the President is prima facie guilty
on any of the grounds mentioned in the
sub-section would postulate that before
these statutory requirements are found to
exist, a fair opportunity of being heard
must be granted to the President of the
municipality. A finding of prima facie guilt
must, in our view, be consistent with a
prior fulfillment of the norms of natural
justice, consistent with the stage of enquiry.
There is intrinsic evidence in the statutory
provision which leads to the inference that
the mere issuance of the notice to showcause does not a fortiori result in the
cessation
of
the
financial
and
administrative powers, functions and duties
but it is only when the conditions which are
876 INDIAN LAW REPORTS ALLAHABAD SERIES
spelt out in the proviso exist, that such a
consequence will follow. If a mere issuance
of a notice to show-cause was intended to
necessarily result in the consequence of the
cessation of financial and administrative
powers as envisaged in the proviso, the
legislature would have made a provision to
that effect. On the contrary, the legislature
has carefully crafted a statutory provision,
in the form of a proviso which ensures that
it is only upon the State Government
having a reason to believe that the
allegations do not appear to be groundless
and that the President is prima facie guilty
on any of the grounds contained in the subsection, that the cessation of the financial
and administrative powers would follow
from the date of the issuance of the notice
to show-cause containing the charges."

27. The cessation of financial and
administrative
powers
of
an
elected
representative
is
a
matter
of
great
significance and has serious consequences.
The aforesaid action erodes the authority of
the elected head to effectively discharge the
functions of the office. An action which has
civil consequences is to be in consonance
with the principles of natural justice. In the
present case, the cessation of financial and
administrative powers of the President of
the
Nagar
Panchayat
has
civil
consequences and as such the principles of
natural justice are required to be followed
in consonance with the law laid down by
the five Judges Bench of this Court in
Paras Jain (supra).

28.