Uttarakhand High Court
WPMS/2225/2021 on 25 October, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 25TH DAY OF OCTOBER, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 2225 of 2021
BETWEEN:
Neeta. ...Petitioner
(By Mr. Parkishit Saini, Advocate)
AND:
State of Uttarakhand & another. ...Respondents
(By Mr. Pradeep Hairiya, Standing Counsel for the State
of Uttarakhand)
JUDGMENT
During the last municipality election,
petitioner was elected as Ward Member from Ward
No. 4 Nagar Palika Parishad, Laksar. At the time of
her election, she had two daughters and, after
election, she had begotten the third child. Section 13
(D) (e) of U.P. Municipalities Act, 1916, as applicable
in Uttarakhand, provides that a person having more
than two living children of whom one is born after
expiry of 300 days from the date of notification i.e.
21.12.2002. would be disqualified for being a
Member. One Shri Pankaj Kumar Bansal made a
compliant that petitioner has incurred disqualification
to continue as a Member in view of birth of third child.
Since no decision was taken on his complaint,
therefore, he filed WPMS No. 1321 of 2020, which
was disposed of by this Court with liberty to him to
make fresh representation before the District
Magistrate and District Magistrate was directed to
examine the matter and take appropriate decision.
Under Section 40 of U.P. Municipalities Act, 1916, the
power to remove a Member of Municipality vests in
the State Government, therefore, the District
Magistrate referred the matter to the State
Government. The State Government has now passed
an order on 13.07.2021, removing the petitioner from
the office of Member. Thus, feeling aggrieved,
petitioner has approached this Court.
2. Heard learned counsel for the parties and
perused the record. It is not in dispute that, before
passing the impugned order, a show cause notice was
issued to the petitioner, requiring her to submit her
written reply within fifteen days. Petitioner submitted
her reply to the show cause notice, thus, it cannot be
said that principles of natural justice were violated.
3. Learned counsel for the petitioner submits
that personal hearing was not given to the petitioner,
however, the statute does not provide for giving
personal hearing.
4. In view of express provision contained in
Section 13 (D) (e) of the U.P. Municipalities Act, the
order of removal of the State Government cannot be
faulted.
5. Hon'ble Supreme Court in the case of
Minasingh Majhi Vs. The Collector, Nuapada & another
etc. (Civil Appeal No. 6525 of 2010) has upheld a
similar order of removal passed against an elected
Sarpanch on the ground that, after his election, he
had begotten a third child.
6. Learned counsel for the petitioner has
relied upon Section 40 (6) of the aforesaid Act, which
reads as under:
"40. Removal of members-
(1)......
(2)......
(3)......
(4)......
(5)......
(6) Without prejudice to any of the
foregoing powers, the State
Government may on any of the
grounds referred to in sub-section (1),
instead of removing the member give
him a warning."
7. Thus, learned counsel for the petitioner
submits that petitioner may be permitted to make a
representation to the State Government to exercise
the power available under Section 40 (6) of the Act.
8. The prayer made by learned counsel for the
petitioner cannot be accepted; firstly, due to the fact
that, despite opportunity, petitioner did not make any
such prayer in her reply to the show cause notice;
secondly, in the humble opinion of this Court, the
power available under Section 40 (6) of the Act can
be exercised in cases like the one provided in Section
40 (1) (a), where a Member has absented himself for
more than three consecutive months or three
consecutive meetings; but, such power cannot be
exercised where the disqualification is permanent in
nature. The disqualification incurred by the petitioner
is permanent in nature, therefore, the State
Government cannot invoke the power under Section
40 (6) of the Act for permitting the petitioner to
continue as Member and, instead, give a warning.
9. In such view of the matter, the writ
petition fails and is dismissed.
10. There will be no order as to costs.
(MANOJ KUMAR TIWARI, J.)
Arpan
