Mukesh Negi vs State of Uttarakhand & others

By means of this petition, petitioner has sought following relief:

(i) Issue a writ of certiorari to quash the impugned order dated 22.12.2017 passed by respondent no.1.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the State Government not to interfere in the functioning of the petitioner

as President Nagar Palika Parishad, Gauchar and not to take any action in pursuance to the notice dated 22.12.2017

Heard learned counsel for the parties.

In the year 2013, petitioner was elected as President of Nagar Palika Parishad, Gauchar District Chamoli. It appears that based on a complaint

made by one Sri Dalbir Singh Kanwasi, the District Magistrate, Chamoli constituted two members committee to look into the allegations against

the petitioner. The said Committee submitted its report to the District Magistrate, Chamoli on 29.11.2013. The District Magistrate forwarded the

inquiry report to the State Government vide letter dated 04.03.2014. Thereafter, the State Government issued show cause notice to petitioner on

19.01.2015, which was duly replied by him on 02.02.2015. After considering, petitioner''s reply to show cause notice, the State Government

closed the enquiry by passing an order on 21.08.2015.

The person, who had made complaint against the petitioner, which led to the enquiry, challenged State Government''s order dated 21.08.2015

by filing Writ Petition No. 2331 of 2015 (M/S). The said writ petition was dismissed by a Coordinate Bench of this Court vide order dated

16.09.2015. It appears that the complainant filed Special Appeal No. 566 of 2017, against order passed in WPMS No. 2331 of 2015, which is

still pending. The State Government has now passed an order on 22.12.2017, whereby financial powers of the petitioner, as President of Nagar

Palika Parishad, have been suspended with immediate effect. This order dated 22.12.2017 is under challenge in the present writ petition.

It is the contention of learned senior counsel for the petitioner that the impugned order dated 22.12.2017 is based on self-same inquiry, which

has been closed by the State Government. Thus, according to the petitioner, the order impugned in the writ petition has been passed in the absence

of any material on record. Another contention of learned senior counsel for the petitioner is that in the absence of any enabling provision in the

statue to suspend financial powers of an elected President, the impugned order dated 22.12.2018 cannot be sustained in the eyes of law. He has

relied upon a judgment rendered by this Court in Writ Petition No. 2994 of 2017 (M/S). Paragraph nos. 4 5 & 6 of the said judgment are

extracted below:

On 28.11.2017, Mr. N.S. Pundir, learned Deputy Advocate General representing the State Government sought time to seek instructions in the

matter. On instructions, Mr. Pundir informs the Court that there is no provision in the Municipalities Act, 1916 providing for suspension of

administrative and financial powers of an elected President. Mr. Pundir seeks to draw support from proviso to Section 48(2) of the Act inserted

by State of Uttar Pradesh vide U.P. Act No. 2 of 2005. Since legislature of State of Uttar Pradesh made the said amendment after State re-

organisation and the said amendment is effective from 27.02.2004, therefore, it has no application to State of Uttarakhand. Nevertheless, the

proviso added by State of Uttar Pradesh in Section 48(2) of the Municipalities Act, 1916 vide U.P. Act No. 2 of 2005 is extracted below:-

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 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 subsection and finalization of the proceedings under subsection (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.

Municipalities have now been conferred Constitutional status and provision therefor have been made in Part IXA of the Constitution of India. In

the absence of any express provision for suspension of administrative and financial powers of an elected President, no order for suspending

administrative and financial powers can be passed against him.

In view of the admitted position that there is no such power available to the State Government under Municipalities Act, 1916, as applicable in

State of Uttarakhand, the impugned order passed by the State Government, cannot be sustained in the eyes of law. The impugned order dated

03.11.2017 is liable to be quashed and is hereby quashed.

A specific query was put to learned Chief Standing Counsel, as to whether Municipalities Act 1916, as applicable in Uttarakhand, conferred

any power to the State Government to suspend financial power of an elected President. Learned C.S.C. could not show any provision in the Act

which provides for such power. Regarding the judgment rendered in Writ Petition No. 2994 of 2017 (M/S), he submits that the same has not been

challenged by filing appeal.

Learned senior counsel for the petitioner, on the other hand, submits that as per his instructions, the aforesaid judgment has been implemented

by the State Government, therefore the same has attained finality.

A democratically elected president of Nagar Palika Parishad is entitled to perform the functions and exercise the powers conferred upon him

under Municipalities Act, 1916. An elected President cannot be restrained from exercising his powers conferred by the Act. In the absence of any

enabling provision in the Act for suspending financial powers of an elected President, it is not open to the State Government to restrain him from

exercising the powers conferred by the Act.

Since, this Court has already held in the aforesaid judgment that there is no provision in the Municipalities Act 1916, providing for suspension of

financial powers of an elected President, therefore the impugned order passed by the State Government cannot be sustained in the eyes of law.

Consequently, impugned order dated 22.12.2017 is liable to be quashed and is hereby quashed.

Accordingly, the writ petition is allowed.

However, it shall be open to the State Government to bring the enquiry, if any, pending against the petitioner, to its logical end and pass

appropriate order, in accordance with law, after hearing him.