# Paras Jain v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-18
- **Case number:** Writ-C No. 8179 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta, Manoj Kumar Gupta, Suneet Kumar, Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paras-jain-v-state-of-u-p-ors-43424
- **Pages:** 19

## Headnote

(A) U.P. Municipalities Act-Section 48(2)-
ceasure of financial & administrative
power of Chairman-on fulfillment of any of
contingencies of Section 48 (2)-on being
satisfied the State Government can cease
administrative
and
financial
power-no
need of formal enquiry-only on basis of
show cause notice such powers can be
ceased-as per law laid down by Full Benchin Hafiz Attaullah Ansari-held-correct law.
Held: Para-45 (I) & (II)
(I) Re Question (a): The decision of the
Full Bench in Hafiz Ataullah Ansari Vs
State of U P (supra) lays down the
correct position in law.
(II) Re Questions (b) & (c): The cessation of
financial and administrative powers of the
President
does
not
necessarily
follow
merely upon the issuance of a notice to
show cause under the substantive part of
Section
48(2).
The
financial
and
administrative powers of the President shall
stand ceased if the State Government has
reason to believe that (i) the allegations do
not appear to be groundless; and (ii) the
President is prima facie guilty on any of the
grounds of sub-section (2) resulting in the
issuance of the notice to show cause and
proceedings thereunder. The President of
the municipality will, in that event, cease to
exercise, perform and discharge financial
and administrative powers, functions and
duties from the date of the issuance of the
notice to show cause containing the
charges. For a cessation of financial and
administrative powers to take effect, the
requirements of the proviso to Section
48(2) must be fulfilled. Hence, proceedings
for removal of a President of a municipality
under Section 48(2) may take place in a
given situation though the financial and
administrative powers have not ceased
under the terms of the proviso.
(B)U.P. Municipalities Act-Section 48 (2)-
administrative and financial power of
president of municipality-whether required
to
pass
separate
order
ceasing
of
administrative & financial power-held-"no"-
only on satisfaction about fulfillment of
requirements specific in proviso to Section
48 (2)-power can be exercised.
Held: Para-45 (III)
Re Question (d): There is no requirement
under the statute that a separate order has
to be passed under the proviso to Section
48(2) when the financial and administrative
powers of the President of a municipality
cease. Such a consequence would come
into being upon the requirements specified
in the proviso to Section 48(2) being
fulfilled.
(C)U.P.
Municipalities
Act-Section
48(2)-
financial and administrative power-principle
of natural justice-whether required to be
followed?-held-"yes"-reason d

## Text

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1 All. Smt. Vandana Mishra Vs. State of U.P. & Ors.
49
appropriate
decision
on
her
representation.
5. In neither of the writ petitions, the
rival parties were impleaded, therefore,
both the contesting parties did not
approach this Court with clean hands and
cannot derive benefit of the orders passed
in their writ petitions subject to their
claim being reconsidered afresh in the
light of the relevant Rules. The Rule 5(3)
& (4) of the Rules, 1974 read as under:-
"5(3) Every appointment made under
sub-rule (1) shall be subject to the
condition that the person appointed under
sub-rule (1) shall maintain other members
of the family of deceased Government
servant, who were dependent on the
deceased
Government
servant
immediately before his death and are
unable to maintain themselves.
"5(4) Where the person appointed
under sub-rule (1) neglects or refuses to
maintain a person to whom he is liable to
maintain under sub-rule (3), his services
may be terminated in accordance with the
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999, as
amended from time to time."
6. The said Rule enjoins upon the
appointee to maintain other members of
the family of the deceased Government
servant, who were dependent on the
deceased
Government
servant
immediately before his death and are
unable to maintain themselves and on
failure to do so, such an appointment is
liable to be terminated in accordance with
the provisions of the U.P. Government
Servant (Discipline and Appeal) Rules,
1999. Who were the persons dependent
upon the deceased immediately after his
death is a factor to be considered by the
concerned authority.
7. Rule 7 of the aforesaid Rules,
1974 reads as under:-
"Rule-7. If more than one member of
the family of the deceased Government
servant seeks employment under these
rules, the Head of Office shall decide
about the suitability of the person for
giving employment.The decision will be
taken keeping in the view also the overall
interest of the welfare of the entire family,
particularly the widow and the minor
members thereof."
8. In view of rule 7 of the Rules,
1974 as there are rival claimants the
competent authority shall take a decision
in the light of the aforesaid Rules, 1974
within a period of two months from the
date a certified copy of the order is
submitted before him, based on the
application already submitted which has
been decided by the impugned order and
for this purpose the said application shall
stand restored. The question of payment
of death-cum-retiral dues shall be dealt
with in accordance with the Rules within
a period of next three months. Let a fresh
decision be taken uninfluenced by the
directions or order passed by this Court
referred to hereinabove subject of course
to their entitlement under the aforesaid
provisions.
9. The writ petition is disposed of in
the aforesaid terms.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2015
BEFORE
50
 INDIAN LAW REPORTS ALLAHABAD SERIES
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE YASHWANT VARMA, J.
Writ-C No. 8179 of 2015
Paras Jain
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Mr. Vivek Kumar Singh
Counsel for the Respondents:
Shri C.B. Yadav, Shri Anurag Khanna, Shri
Nipun Singh
(A) U.P. Municipalities Act-Section 48(2)-
ceasure of financial & administrative
power of Chairman-on fulfillment of any of
contingencies of Section 48 (2)-on being
satisfied the State Government can cease
administrative
and
financial
power-no
need of formal enquiry-only on basis of
show cause notice such powers can be
ceased-as per law laid down by Full Benchin Hafiz Attaullah Ansari-held-correct law.
Held: Para-45 (I) & (II)
(I) Re Question (a): The decision of the
Full Bench in Hafiz Ataullah Ansari Vs
State of U P (supra) lays down the
correct position in law.
(II) Re Questions (b) & (c): The cessation of
financial and administrative powers of the
President
does
not
necessarily
follow
merely upon the issuance of a notice to
show cause under the substantive part of
Section
48(2).
The
financial
and
administrative powers of the President shall
stand ceased if the State Government has
reason to believe that (i) the allegations do
not appear to be groundless; and (ii) the
President is prima facie guilty on any of the
grounds of sub-section (2) resulting in the
issuance of the notice to show cause and
proceedings thereunder. The President of
the municipality will, in that event, cease to
exercise, perform and discharge financial
and administrative powers, functions and
duties from the date of the issuance of the
notice to show cause containing the
charges. For a cessation of financial and
administrative powers to take effect, the
requirements of the proviso to Section
48(2) must be fulfilled. Hence, proceedings
for removal of a President of a municipality
under Section 48(2) may take place in a
given situation though the financial and
administrative powers have not ceased
under the terms of the proviso.
(B)U.P. Municipalities Act-Section 48 (2)-
administrative and financial power of
president of municipality-whether required
to
pass
separate
order
ceasing
of
administrative & financial power-held-"no"-
only on satisfaction about fulfillment of
requirements specific in proviso to Section
48 (2)-power can be exercised.
Held: Para-45 (III)
Re Question (d): There is no requirement
under the statute that a separate order has
to be passed under the proviso to Section
48(2) when the financial and administrative
powers of the President of a municipality
cease. Such a consequence would come
into being upon the requirements specified
in the proviso to Section 48(2) being
fulfilled.
(C)U.P.
Municipalities
Act-Section
48(2)-
financial and administrative power-principle
of natural justice-whether required to be
followed?-held-"yes"-reason discussed.
Held: Para-45 (IV)
Re Question (e): An opportunity of being
heard, consistent with the principles of
natural
justice,
before
there
is
a
cessation
of
the
financial
and
administrative powers of the President
does
not
stand
excluded
by
the
provisions of Section 48(2). As a matter
of
textual
interpretation,
the
requirement
of
complying
with
the
principles of natural justice is an integral
element of the proviso to Section 48(2).
The requirements of natural justice
1 All.
 Paras Jain Vs. State of U.P. & Ors.
51
would
warrant
the
grant
of
an
opportunity to the elected head of a
municipality to respond to the notice
issued by the State indicating the basis
for the formation of a reason to believe
that the charges do not appear to be
groundless and that the President is
prima facie guilty on any of the grounds
mentioned in sub-section (2) of Section
48. The period of notice can be suitably
molded to deal with the exigencies of the
situation.
Case Law discussed:
[2011 (3) ADJ 502 (FB)]; 1993 Supp (2) SCC
497:AIR 1993 SC 1167; (1985) 3 SCC 72:1985
SCC (Cri) 312:AIR 1985 SC 989; (1973) 3 SCC
83:AIR 1972 SC 2267; (1972) 3 SCC 234:AIR
1971 SC 2451; AIR 1967 SC 523; (1976) 3
SCC 757:1976 SCC (Tax) 402:AIR 1976 SC
1753; (1973) 3 SCC 265:1973 SCC (Tax)
177:AIR 1973 SC 370; UP Act 26 of 1964; UP
Act 12 of 1994; UP Act 22 of 2001; UP Act 6 of
2004; (2012) 4 SCC 407; (2002) 5 SCC
685:AIR 2002 SC 2158; AIR 1963 SC 395; AIR
1964 SC 364; (2001) 6 SCC 260; (2010) 2 SCC
319; (1993) 1 SCC 78; (2015) 8 SCC 519; AIR
1967 SC 295; AIR 1967 SC 1753; (1972) 3
SCC 234; (2008) 4 SCC 144.
(Delivered by Hon'ble Dr. D.Y Chandrachud,
C.J.)
The issue in controversy
1. A Division Bench of this Court,
finding itself "unable to accept the law"
laid down in a decision of a Full Bench in
Hafiz Ataullah Ansari Vs State of U P1,
referred the following questions for
determination by a larger Bench:
"(a)
Whether
the
Full
Bench
judgment in the case of Hafiz Ataullah
Ansari Vs. State of U.P. (supra) lays
down the correct law;
(b) Whether in view of the language
of the proviso to Section 48(2) of the U P
Municipalities Act, there can be any
proceedings for removal of the President
without his financial and administrative
powers ceasing, under the proviso;
(c) Whether cessation of financial
and
administrative
powers
of
the
President follows automatically with the
issuance of a show cause notice under
Section 48 (2) calling upon him to show
cause as to why he may not be removed;
(d) Whether any separate order for
cessation of financial and administrative
powers of the President is required to be
made while issuing a notice under the
proviso to Section 48(2) or such cessation
follows automatically; and
(e) Whether in view of the specific
language of Section 48(2), the question of
opportunity of hearing before cessation of
the financial and administrative powers of
the President stands excluded."
2. Since a decision rendered by a
Bench of three Judges which constituted
the Full Bench in Hafiz Ataullah Ansari
has been doubted, the reference comes
before this Bench of five Judges.
Removal of the President of a
Municipality
3. The issue which falls for
determination, turns upon the provisions
of Section 48 of the Uttar Pradesh
Municipalities Act, 19162. Sub-section
(2) of Section 48 deals with the removal
of the President of a municipality and is in
the following terms:
"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
52
 INDIAN LAW REPORTS ALLAHABAD SERIES
(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
sub-section (2) of Section 82, 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 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
willfully
contravened
any
of
the
provisions of this Act or any rule,
regulation or bye-laws, or caused such
loss or damage to the 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 member; or
(ix) caused loss or damage to any
property of the Municipality; or
(x)
misappropriated
or
misused
Municipal fund; 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) willfully 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
1 All.
 Paras Jain Vs. State of U.P. & Ors.
53
any of the grounds of this sub-section
resulting in the issuance of the showcause 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 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."
4. Sub-section (2) of Section 48
enables the State Government to issue a
notice to show cause to the President of a
municipality to explain why he should not
be removed from office where the State
Government has "reason to believe" that
any of the provisions of clauses (a) or (b)
are attracted. Broadly speaking, the
reason to believe relates to any one of the
breaches specified in clause (a) or in subclauses (i) to (xvii) of clause (b) of subsection (2). Each of them has a bearing on
the discharge or the failure to discharge
duties on the part of the President of a
municipality or conduct of a nature which
is proscribed therein. In the event that the
State Government has reason to believe
that any of those stipulations is attracted,
it is empowered to call upon the President
to show cause why he should not be
removed from office.
5. The proviso to Section 48 (2)
entails that where its conditions are
fulfilled, the President of a municipality
shall 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 notice to show
cause
and
the
finalization
of
the
proceedings under sub-section (2-A). In
order that the proviso be attracted, several
stipulations have to be fulfilled. These
stipulations are - firstly, that the State
Government must have reason to believe
that the allegations do not appear to be
groundless;
secondly,
the
State
Government must have reason to believe
that the President is prima facie guilty of
any of the grounds contained in the subsection resulting in the issuance of the
notice to show cause and proceedings
thereunder; and thirdly, that the notice to
show cause must contain the charges
against the President of the municipality.
Where these three conditions have been
fulfilled, the consequence entailed by the
proviso to sub-section (2) comes into
being and the President shall cease to
exercise, perform and discharge the
financial
and
administrative
powers,
functions and duties of the President until
exonerated of the charges mentioned in
the notice to show cause and finalization
of the proceedings under sub-section (2A).
The judgment of the Full Bench
6. In Hafiz Ataullah Ansari, a Full
Bench of this Court held that Section
48(2) may envisage two situations - the
first,
where
the
financial
and
administrative powers of a President do
not cease and the other, where they cease.
The Full Bench held that a ceasing of the
financial and administrative powers of the
President can take place only where the
conditions specified in the proviso to
54
 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 48 (2) apply. As the Full Bench
held:
"54. The intention of the legislature
is clear from the language of the
provision. It envisages two kinds of
proceedings under section 48(2) of the
Municipalities Act:
One, simpliciter where financial and
administrative powers of the President do
not cease;
The other, where his financial and
administrative powers cease. This can
happen only if the conditions under
proviso to section 48(2) are satisfied.
55. The proviso to Section 48(2) is
meant to apply in the serious situation
where it is expedient to cease the financial
and
administrative
powers
of
the
President. It is not to apply in every case.
It is for this reason that extra precautions
have been provided in the proviso to
Section 48(2) of the Municipalities Act."
7. Dealing with the conditions which
have been spelt out in the proviso to
Section 48 (2), the Full Bench observed as
follows:
"73. The proviso to Section 48(2) of
the
Municipalities
Act
prescribes
conditions that have to be fulfilled before
the right of a President to exercise
financial and administrative powers can
cease. It states that:
(i) The State Government should
have reasons to believe that:
The allegations do not appear to be
groundless; and
The President is prima facie guilty of
any of the grounds mentioned in Section
48(2) of the Municipalities Act.
(ii) The State Government should
also issue show cause notice for removal
under Section 48(2) of the Municipalities
Act and it must contain charges.
74. The phrase 'reasons to believe' is
often used in statutes and has been
repeatedly held by the Courts (for citation
of the rulings see below)3 to mean that
reasons for the formation of the belief
must have a rational connection or
relevant bearing on the formation of the
belief. Rational connection postulates that
there must be a direct nexus or live link
between the material and formation of the
belief."
8. On the applicability of the
principles of natural justice before the
financial and administrative powers of the
President of a municipality cease, the Full
Bench emphasised that such an order
envisages
civil
consequences
which
cannot be cured merely
by a postdecisional hearing:
"In the case, where a head of a local
body is deprived to exercise financial and
administrative power, and ultimately the
proceeding for removal are dropped then
in such an event his loss can never be
compensated. A post decisional hearing
cannot cure the harm/damage done to
him."
9. The Full Bench opined that it was
necessary to furnish an opportunity of
submitting an explanation to the head of
the local body and this would eliminate an
arbitrary exercise of power, besides
bringing about fairness in procedure. In
the view of the Full Bench:
"...The principles of natural justice or
the yardstick of fairness would be met if
the explanation of the affected head of the
local body or his point of view or version
is
considered
before
recording
the
1 All.
 Paras Jain Vs. State of U.P. & Ors.
55
satisfaction or finding of prima facie guilt
before issuing notice and passing order
for ceasing financial and administrative
powers."
10. The Full Bench has explained
that such an opportunity to submit an
explanation need not be as detailed as in a
regular enquiry and all that is necessary is
to enable the elected head of the
municipality to have his point of view or
version
considered.
The
conclusions
which were arrived at by the Full Bench
were as follows:
"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
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 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."
Legislative history
11. The legislative history of Section
48 has a bearing on the issue in
controversy.
12.

By
the
Uttar
Pradesh
Municipalities (Amendment) Act, 19644,
sub-sections
(2-A)
and
(3)
were
introduced into Section 48. Sub-section
(2-A) confers upon the State Government
the power to remove the President of a
municipality from his office. The proviso
56
 INDIAN LAW REPORTS ALLAHABAD SERIES
to sub-section (2-A) enabled the State
Government to issue a warning instead of
removing the President in stipulated
situations. Sub-section (3) empowered the
State Government to suspend a President.
13. Sub-sections (2-A) and (3), as
introduced by U P Act 26 of 1964 were in
the following terms:
"(2-A)
After
considering
any
explanation that may be offered by the
President and making such enquiry as it
may
consider
necessary,
the
State
Government may for reasons to be
recorded in writing, remove the President
from his office:
Provided that in a case where the
State Government has issued notice in
respect of any ground mentioned in clause
(a) or sub-clause (ii), (iii), (iv), (vi), (vii)
or (viii) of clause (b) of sub-section it may
instead of removing him give him a
warning.
(3) The State Government may place
under suspension a President who is
called upon to show-cause in respect of
any ground mentioned in clause (a) or
sub-clause (vi), (vii) or (viii) of clause (b)
of sub-section (2) or against whom a
prosecution for an offence which in the
opinion of the State Government involves
moral turpitude is commenced until the
conclusion
of
the
enquiry
or
the
prosecution, as the case may be, and
where a President has been so suspended
he shall not, for so long as the order of
suspension continues, be entitled-
(a) to exercise the powers or perform
the duties of a President conferred or
imposed upon him by or under this Act or
any other enactment for the time being in
force, or
(b) to take part in any proceedings of
the board."
14. Upon the Seventy-third and
Seventy-fourth
Constitutional
Amendments being brought into force, the
Uttar
Pradesh
Urban
Local
SelfGovernment Laws (Amendment) Act,
19945 was enacted. The amending
legislation omitted Section 48(3). As a
result, the power to suspend the President
of a municipality during the pendency of
a proceeding for his removal was deleted.
15. Subsequently, by the Uttar
Pradesh Municipalities (Amendment) Act,
20016, sub-section (2-A) of Section 48
was amended to delete the proviso that
empowered the State Government to issue
a warning instead of a removal.
16.
In 2004, the Uttar Pradesh
Municipalities (Amendment) Act, 20047 was
enacted by the state legislature. By the
Amending Act, a provision which was
numbered as sub-section 2-A was introduced
in Section 48 in the following terms:
"(2-A) Where in an inquiry held by
such person and in such manner as may be
prescribed, if a President or a Vice-President
is prima facie found to be guilty on any of
the grounds referred to in sub-section (2), he
shall cease to exercise, perform and
discharge the financial and administrative
powers, functions and duties of the President
or the Vice-President, as the case may be,
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."
17. The reason which led to the
introduction of sub-section (2-A) in the
above terms was spelt out in the
1 All.
 Paras Jain Vs. State of U.P. & Ors.
57
Statement
of
Objects
and
Reasons
accompanying the introduction of the Bill
in the state legislature. The State of
Objects and Reasons provided as follows:
"Section 48 of the Uttar Pradesh
Municipalities Act, 1916 (U.P. Act No. 2
of 1916) provides for the removal of
President of a municipality.
In the said Section the State Government
is empowered to issue show-cause notice to
the guilty President on the grounds mentioned
under Section 48, before removing him from
his office. Most of the Presidents used to delay
the proceedings by not replying the showcause notice in time and they continue to
misuse their financial powers. It has, therefore,
been decided to amend the said Act to cease
the financial powers of such President or a
Vice-Present during the pendency of the
inquiry and his financial powers and functions
will be exercised and performed by the
District Magistrate until he is exonerated of
the charges.
The Uttar Pradesh Municipalities
(Amendment) Bill, 2004 is introduced
accordingly." (emphasis supplied)
18.
The numbering of the above
provision as sub-section 2-A suffered from
an obvious error on the part of the legislative
draftsman. That was because there was
already in existence a provision, numbered as
sub-section (2-A) which had been introduced
by U P Act 26 of 1964 to entrust the State
Government with the power of removal to be
exercised after considering the explanation
that may be offered and upon making an
enquiry as considered necessary and for
reasons to be recorded in writing. The
existing sub-section (2-A) which provides
for removal was not deleted. The new
provision was erroneously numbered as subsection (2-A). This mistake was rectified by
the
Uttar
Pradesh
Municipalities
(Amendment) Act, 20058. By the Amending
Act, sub-section 2-A, as was inserted by U P
Act 6 of 2004, was omitted and, in its place,
a proviso was introduced in sub-section (2).
The proviso which we have analysed earlier
sets out the manner in which and the
conditions upon which the financial and
administrative powers of the President can
cease.
Part IX-A of the Constitution
19. Part IX of the Constitution contains
provisions in relation to the panchayats. Part
IX-A provides for the municipalities. These
provisions were introduced by the Seventythird and Seventy-fourth amendments to the
Constitution. Municipalities and panchayats
as institutions of local self- government 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 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.
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
58
 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
21.
In Ravi Yashwant Bhoir Vs
District Collector, Raigad9, the appellant
who was the President of a Municipal
Council was declared to be disqualified
under the provisions of the Maharashtra
Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965. Among the
charges against him, was a failure to call for
a general body meeting, the acceptance of
fresh tenders at high rates in connection with
the work of laying down a water supply
pipeline
and
allowing
unauthorized
construction. A writ petition filed by the
elected head was dismissed by the High
Court. In appeal, the Supreme Court
emphasized the importance ascribed by Parts
IX and IXA of the Constitution to the role
and position of the elected head of a local
self-governing institution in the following
observations:
"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."10
22. Dealing with the aspect of
observing the principles of natural justice,
the Supreme Court held that:
"There can also be no quarrel with
the settled legal proposition that removal
of a duly elected member on the basis of
proved misconduct is a quasi-judicial
proceeding in nature. [Vide: Indian
National Congress (I) v. Institute of
Social Welfare11]. This view stands
further fortified by the Constitution Bench
judgments of this Court in Bachhitar
Singh v. State of Punjab12 and Union of
India v. H. C. Goel13. Therefore, the
principles of natural justice are required to
be given full play and strict compliance
should be ensured, even in the absence of
any provision providing for the same.
Principles of natural justice require a fair
opportunity of defence to such an elected
office bearer."14 (emphasis supplied)
23. The Supreme Court observed that
an elected official is accountable to the
electorate
and
removal
has
serious
repercussions since it takes away the right of
1 All.
 Paras Jain Vs. State of U.P. & Ors.
59
the electorate to be represented by a
candidate who is elected. Undoubtedly, the
right to hold the post is statutory and in that
sense is not absolute but removal can take
place - it was held - only after strictly
adhering to the provisions laid down by the
legislature for removal. The requirement of
observing the principles of natural justice
was hence held to be mandated before an
order of removal is passed:
"...the law on the issue stands
crystallized to the effect that an elected
member can be removed in exceptional
circumstances giving strict adherence to the
statutory provisions and holding the enquiry,
meeting the requirement of principles of
natural justice and giving an incumbent an
opportunity to defend himself, for the reason
that removal of an elected person casts
stigma upon him and takes away his valuable
statutory right. Not only the elected officebearer but his constituency/electoral college
is also deprived of representation by the
person of his choice."15
24. A Bench of three learned Judges
of the Supreme Court in Tarlochan Dev
Sharma Vs State of Punjab16 dealt with
the power of removal under Section 22 of
the Punjab Municipal Act, 1911. The
Supreme Court emphasized that :
"In a democracy governed by rule of
law, once elected to an office in a 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."17
25. Interpreting the expression
"abuse of powers" as a ground for
removal, it was held that this would not
mean the mere use of power which may
appear to be simply unreasonable or
inappropriate but implies a willful abuse
or an intentional wrong.
26. In Sharda Kailash Mittal Vs State
of Madhya Pradesh18, the Supreme Court
construed the power vested in regard to the
removal of the President of a Nagar Palika
under the Madhya Pradesh Municipalities
Act, 1961. The Supreme Court emphasized
that the power has to be exercised for strong
and weighty reasons and not merely on the
basis of minor irregularities in the discharge
of the duties by a holder of an elected office.
In that context, the Supreme Court observed
thus:
"There are no sufficient guidelines in
the provisions of Section 41-A 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
60
 INDIAN LAW REPORTS ALLAHABAD SERIES
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."19
(emphasis supplied)
27.
These decisions emphasise the
importance of the role and position of elected
heads of government under Part IXA of the
Constitution. They represent the electorate
and their removal affects the right of the
electorate to be governed by an elected head
accountable to it. Hence the power of
removal which the State exercises under
legislative provisions has to be exercised
strictly in accordance with the terms of
authorizing legislation. Removal entails
consequences of a serious and adverse
nature. Hence an order of removal has to be
preceded by compliance with the principles
of natural justice, whether or not there is an
express statutory provision.
Natural justice as an incident of
procedural fairness
28. The next aspect of the matter
which must be emphasized is the
importance of the observance of natural
justice as an integral element or facet of
procedural fairness. The principles of
natural justice in our jurisprudence are not
only
a
foundational
basis
of
administrative law as it has evolved but
constitute an essential part of fair
procedure guaranteed by Article 14 of the
Constitution.
Observance
of
natural
justice has progressively been extended to
areas of administrative decision making
where the decision is liable to result in
serious consequences for those who are
affected or regulated. The line between
what is judicial or quasi-judicial on one
hand and what is administrative on the
other, has progressively been effaced.
29. In C B Gautam Vs Union of
India20, the Supreme Court held that even
where a statutory provision - in that case
Section 269UD of the Income Tax Act
1961 - does not provide specifically for
compliance of the principles of natural
justice, adherence to those principles must
be read into the interstices of the statute.
30. These principles have been
reiterated in a recent judgment of the
Supreme Court in Dharampal Satyapal
Limited Vs Deputy Commissioner of
Central Excise, Gauhati21 where it was
held that:
"It, thus, cannot be denied that the
principles of natural justice are grounded
in procedural fairness which ensures
taking of correct decisions and procedural
fairness is fundamentally an instrumental
good, in the sense that procedure should
be designed to ensure accurate or
appropriate outcomes. In fact, procedural
fairness is valuable in both instrumental
and non-instrumental terms."22
31. Again, the Supreme Court
emphasized that the applicability of the
principles of natural justice is not
dependent upon an enabling statutory
provision for, where a decision is liable to
result in an adverse consequence, natural
justice must be observed despite the
absence of a statutory requirement to that
effect.
The
principle
which
was
formulated by the Supreme Court is thus:
1 All.
 Paras Jain Vs. State of U.P. & Ors.
61
"...the courts have consistently insisted
that such procedural fairness has to be
adhered to before a decision is made and
infraction thereof has led to the quashing of
decisions taken. In many statutes, provisions
are made ensuring that a notice is given to a
person against whom an order is likely to be
passed before a decision is made, but there
may be instances where though an authority
is vested with the powers to pass such orders,
which affect the liberty or property of an
individual but the statute may not contain a
provision for prior hearing.