Allahabad High Court
Kesari Nandan Tripathi vs State Of U.P. And 4 Others on 22 August, 2022
Bench: Manoj Kumar Gupta, Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 21
Case :- WRIT - C No. - 23568 of 2022
Petitioner :- Kesari Nandan Tripathi
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Diwakar Singh,Nisheeth Yadav,Sr. Advocate
Counsel for Respondent :- CSC
Hon'ble Manoj Kumar Gupta,J.
Hon'ble Ram Manohar Narayan Mishra,J.
1. The instant petition has been filed calling in question an order dated 28.6.2022 passed by respondent No.1 ceasing the financial and administrative powers of the petitioner, who is President of Nagar Panchayat, Chitbada Gaon, District Ballia, exercising power under the Proviso of Sub-Section 2 of Section 48 of the U.P. Municipalities Act, 1916. The petitioner has also challenged the consequential order dated 29.7.2022 authorizing District Collector to exercise these powers.
2. Initially, an order was passed to the same effect by the State Government on 23rd January, 2020. It as a composite order. Apart from ceasing the financial and administrative powers, it also set in motion the final enquiry for exercising power of removal under Section 48 of the Act. The said order was subjected to challenge by the petitioner in Writ C No.4476 of 2022. The main ground of attack was in the light of Full Bench Judgement of this Court in Hafiz Ataullah Ansari vs. State of U.P. and ors. [2011 (2) UPLBEC 889 (FB). According to the petitioner, the requirements of principle of natural justice, as laid down in the said judgement, were not complied with while ceasing the financial and administrative powers of the petitioner. It seems that the State agreed to re-visit the matter in the light of the Full Bench Judgement and consequently, this Court quashed the order dated 23rd January, 2020 to the extent it sought to cease financial and administrative powers of the petitioner. However, while quashing the order to the above extent, the other part of the order seeking to set in motion the final enquiry for removal was kept intact. The Court also ordered that the order impugned will be treated as a notice of the proposed action under the proviso to Section 48(2) of the U.P. Municipalities act, 1916 and the petitioner was directed to submit a reply to the same within a period of two weeks. The order granted liberty to the respondents to pass fresh order in the light of the observations made in the judgement and the judgement of the full bench. For convenience of reference, the operative part of the order is extracted below:-
"The order dated 23rd January, 2020 to the extent it seized the financial and administrative powers of the petitioner as President of Nagar Panchayat Chitbada Gaon, District Ballia is hereby quashed. The order dated 23rd January, 2020 besides setting into motion the final enquiry, is also taken to be as a notice of the proposed action under the proviso to section 48 (2) of the U.P. Municipalities Act, 1916 and the petitioner is directed to submit a reply to the same within a period of two weeks from today and in any case by 25th of February, 2020. In the event, any such reply is submitted, the respondents are at liberty to pass order afresh in the light of the observations made hereinabove in this judgment and the judgment of the full bench (supra). "
3. The petitioner, in consequence of the above liberty, submitted his explanation in response to the notice dated 23rd January, 2020. The respondents, thereafter, sought comments from the District Authorities, following by passing of the impugned order.
4. The impugned order takes into consideration the reply submitted by the petitioner to show cause notice as well as material against the petitioner and the comments of the District Magistrate and thereafter concludes that prima facie the petitioner is guilty of financial irregularities and contravention of the provision of the Act and the Rules. These acts and omissions fall under the purview of Clause (VI)(VII) (X) and (XI) of Section 48(2)(b) of the Act, warranting exercise of power under the proviso thereto.
5. Sri C.B. Yadav, Senior Advocate appearing on behalf of the petitioner has made two folds submissions. Firstly, it is urged that the respondents have acted wholly without jurisdiction in passing the impugned order ceasing the financial and administrative powers of the petitioner, as an earlier order passed to the same effect was quashed by this Court and second, that after the reply was submitted by the petitioner, the matter was kept pending for almost two years and thus, there was no justification for exercising power under proviso of sub-section (2) of Section 48 of the Act. It is urged that instead, the respondents could have passed final order.
6. As regards the first submission, it is noteworthy that this Court while quashing the order dated 23.1.2020 had clarified that the said order would be treated to be a show cause notice of the proposed action under the proviso to Section 48 (2) of the Act and the petitioner was directed to submit his reply to the same within two weeks. The respondents were given liberty to pass fresh order keeping in mind the law laid down by this Court in Full Bench Judgement. Consequently, it cannot be said that the State had acted illegally in passing the impugned order, as the said liberty was specifically reserved in its favour while passing the earlier order.
7. As regards the second submission, although it is true that the matter had remained pending for considerable period but that itself is not sufficient to quash the impugned order, as long as petitioner is not able to point out any illegality therein.
8. As learned counsel for the petitioner has made no other submission, therefore, we are of considered opinion that on the above grounds, the impugned order cannot be quashed. While we decline to interfere with the impugned order, we dispose of the instant petition with a direction to the State Government to take final decision in the matter as expeditiously as possible, preferably within a period of six weeks from the date of communication of the instant order.
(R.M.N. Mishra, J.) (Manoj Kumar Gupta, J.)
Order Date :- 22.8.2022
Kamarjahan
