Allahabad High Court
Smt. Deeksha Gangwar vs State Of U.P. And Others on 20 October, 2011
Bench: Amitava Lala, Vinay Kumar Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR Court No.3
Civil Misc.Writ Petition No. 57422 of 2011
Smt. Deeksha Gangwar ................. Petitioner
Versus
State of U.P. and others ...................... Respondents
Present:
(Hon'ble Mr.Justice Amitava Lala and Hon'ble Mr.Justice Vinay Kumar Mathur)
Appearance:
For the Petitioner : Sri Brijesh Yadav
For the Respondents : /Sri S.G.Hasnain, Learned Addl.Advocate General, Ramanand Pandey,Pushpendra Singh
Amitava Lala, J. - Petitioner filed this writ petition challenging the order dated 8.8.2011 and 21.9.2011 passed by respondent Nos. 1, 2 and 4.
From the order impugned, we find that the Principal Secretary exonerated him from the charges excepting one with regard to an advertisement which according to him is not in the regular newspaper. Though, the matter has been communicated to the District Magistrate for the purposes of taking appropriate steps but Tehsildar issued a citation to him to recover the amount of Rs.59,650/- on such ground.
Learned Standing Counsel appearing for the respondents has contended that the decision will be taken in this regard by the District Magistrate under Section 81 of the Uttar Pradesh Municipalities Act, 1916. However, such liability shall cease to exist after the expiry of ten years from the occurrence of such loss, waste or misapplication or after the expiry of five years from the date on which such President, member, officer or servant ceases to hold his office, whichever is later. Such amount will be recovered as land revenue.
Learned counsel for petitioner has annexed a judgement of the Division Bench of this Court reported in 2006 (10) ADJ 8 (DB) Shamsussalam Quddusi Vs. State of U.P. whereunder it was held that the amount in question cannot be recovered from the petitioner under the Public Money (Recovery of Dues) Act, 1972. The petitioner has also challenged the citation dated 21.9.2011. It has been issued to him for the purposes of recovery of the amount as land revenue. Petitioner's further case is that the matter relates to eight and half years before and the Municipal Board Surcharge Rules 1948 prescribes that liability cannot be fixed after expiry of six years from the date of occurrence to which we find Section 81(1) of the Act 1916 says liability shall cease to exist after the expiry of ten years from the occurrence, therefore, provision of the Act will prevail over the provisions of the Rules and as such time limit so prescribed cannot be available to the petitioner. In such conflicting situation, Learned Standing Counsel has contended that the District Magistrate will take steps but as yet no decision has been taken by the District Magistrate, therefore, the writ petition appears to be premature in nature. Against this background, petitioner has brought to our notice the provision of Section 43 AA, Sub-Section 2 of the Act 1916 to establish that a person may be disqualified from President-ship, if he is held liable under Clauses (a) to (g) and (i) to (k) of Section 13-D of the Act.
We have gone through Section 13-D(g) and we found that he shall be disqualified if he is in arrears in the payment of Municipal Tax or other dues in excess of one year's demand to which Section 166 of the Act applies.
Learned Standing Counsel has contended that the writ petition is restricted only with regard to the order which has been passed by the Principal Secretary not with regard to any action of the District Magistrate under the aforesaid provisions nor any challenge has been thrown at the initial stage with regard to reference of the Lokayukt under whose direction the enquiry was started.
In any event, we have considered all pros and cons of the case and found that the liability is attempted to be fixed for the period 2002-2003 and the order impugned speaks liability on the ground of not making proper publication, nor against the misappropriation. Therefore, since the final decision has not been taken by the District Magistrate as yet and one year period under Section 13 has not passed, we are of view that petitioner cannot be fixed with the liability unless an order is passed by the District Magistrate taking into account all aspects of the matter as discussed. Therefore, the citation cannot be made to be effective till such time. Moreover, from the citation since one year period as provided under Section 13-D(g) has not expired, we are of the view that petitioner cannot be held to be ineligible for any future election.
In any event, a decision is needed in the matter and that will be taken by the District Magistrate as expeditiously as possible preferably within a period of one month from the date of communication of the order. Keeping the action in abeyance, till communication of such order, the writ petition is accordingly disposed, of on the contest, however, without imposing any cost.
This order is confined only in respect of petitioner but will not create any precedent.
(Justice Amitava Lala)
I agree
(Justice Vinay Kumar Mathur)
20.10.2011
SKD
