Smt. Mamta Kanaujia vs State of U.P. and Others

Pradeep Kant, J.—The petition raises arguable questions, both of facts and law, which makes out a case for admitting the writ petition.

Admit.

Notices on behalf of the respondents have already been accepted by the learned Chief Standing Counsel.

Respondents may file counter affidavit within three weeks. Petitioner may file rejoinder, if any, within a week thereafter.

We have heard learned Counsel for the parties on the application for interim relief and have also perused the record.

The petitioner, who is a sitting Adhyaksha of Zila Panchayat, Kannauj, challenges the order dated 8.7.2010, passed by the State Government, whereby a formal enquiry has been ordered in respect of the charges levelled against her and her financial and administrative powers have been ceased and a three-member committee has been constituted to discharge the functions of Adhyaksha till the formal enquiry is completed and the petitioner is exonerated of the charges.

The petitioner was elected as Member and thereafter as Chairman, Zila Panchayat, Kannauj and she took the oath of the office of Adhyaksha on 14.1.2006. After the general election of the State Assembly, the Bahujan Samaj Party (BSP) formed the Government, who introduced an amendment in Section 28 of the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as the Act, 1961) in the year 2007 itself in respect of bringing ''No Confidence Motion'' at an early stage, which was challenged by the petitioner alongwith others by filing a bunch of writ petitions, leading petition being Writ Petition No. 451 (M/B) of 2008, Mamta Kanaujia v. State of U.P. and Ors. which were disposed of by this Court upholding the validity of the provisions of the Amendment Act (U.P. Act No. 44 of 2007) on 6.2.2009.

It is the case of the petitioner that because she does not belong to the ailing party and she challenged the said amendment in the aforesaid Act of 1961, she became an eye-sore in the eyes of the members of Zila Panchayat, who belonged to the ruling party BSP. Three members, namely, Smt. Van Devi, Sri Mahendra Singh and Sri Satish Chandra Chaturvedi filed a joint complaint against the petitioner dated 23.2.2010 alongwith three separate affidavits dated 20.2.2010, which were identically worded.

The submission of the learned Counsel for the petitioner is that the aforesaid complainant was not at all cognizable by the State Government for the reasons, (i) on the face of it, it was not a genuine complaint, the same having been filed alongwith an affidavit with identical and same words by the three ruling party members with a motivated design to oust the petitioner from the elected office of Adhyaksha on charges, which were absolutely frivolous and vague, and (ii) the complaint was not made in accordance with the mandatory requirement of Rule 3 of the U.P. Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas) Enquiry Rules, 1997 (hereinafter referred to as the Rules, 1997).

The next argument of the learned Counsel for the petitioner is that though the State Government vide its order dated 12.4.2010 specifically directed the District Magistrate to hold a preliminary enquiry himself in terms of Rule 4 of the Rules, 1997, but the District Magistrate delegated this power to Additional District Magistrate (Finance and Revenue), who in fact acted as an enquiry officer, which was not permissible under the Rules, 1997. In support of her claim, the petitioner has brought on record the memo dated 24.4.2010, issued by the office of District Magistrate, by means of which the Additional District Magistrate (Finance and Revenue), as enquiry officer, asked for the comments of Apar Mukhya Adhikari, Zila Panchayat, Kannauj on the complaint of aforesaid three members and who, in turn, also invited comments from the petitioner on 14.5.2010. The petitioner submitted her reply on 26.5.2010, but the Additional District Magistrate (Finance and Revenue), without considering that reply, mechanically prepared the enquiry report, which in fact was forwarded to the District Magistrate. The District Magistrate submitted the same to the State Government, but the fact remains that no enquiry was conducted by the District Magistrate himself despite the specific order passed by the State Government requiring him to personally hold the enquiry.

The argument is that such an enquiry report could not have been made the basis by the State Government to pass the impugned order as the enquiry was not conducted by the authorised/nominated officer, namely, the District Magistrate.

The third argument of the learned Counsel for the petitioner is that though 12 charges were levelled against the petitioner, but as per the impugned order, only six charges were found proved though there was no material on record to establish the aforesaid charges against her. Further argument is that even the aforesaid charges, on the face of it, do not make out a case for removal of the petitioner from the office of Adhyaksha, even if taken to be proved, though they do not stand even prima facie proved.

Summarizing the aforesaid six charges, it has been submitted that the first charge relates to non-calling of meetings at regular interval of two months; there was delay in calling them for one month to three months. The second charge relates to non-constitution of sub-committees of Zila Panchayat in time and non-calling of their meetings in time. The third charge relates to settlement of tenders of bones and hides at rates less than the rates of previous years. Charges Nos. 4 and 5 relate to procedural irregularities committed in the grant of fishing and Tahbazari rights, and Charge No. 6 relates to procedural irregularities committed in auction of lease rights of agricultural farms.

In the writ petition as also in the reply submitted by the petitioner, it has been specifically stated that because Lok Sabha, Rajya Sabha and Vidhan Sabha were in Session, Zila Panchayat Kannauj remained short of six meetings i.e. only 18 out of 24 meetings were called in the last four years, as and when the same was possible, they were admittedly held. The argument is that even otherwise, non-calling of meeting at every two months cannot be a ground for removal of elected Adhyaksha from office.

With respect to non-constitution of sub-committees of Zila Panchayat in time and non-calling of their meetings, the submission is that the sub-committees were duly constituted and meetings were called in which the complainants who were also the members, absented themselves.

In respect of third charge, the submission is that tenders of hides and bones were settled by the Apar Mukhya Adhikari as per Government Orders and it being an era of recession, reduction in the income of Zila Panchayats from the settlement of the tenders of bones and hides was a common phenomenon being witnessed by several Zila Panchayats including those which were governed by the persons who belonged to the ruling party BSP. The submission is that despite serious efforts being made while making the auction, if the income could not increase, the same cannot be attributed to the Adhyaksha nor can it be taken as misconduct or abuse of the powers.

In respect of fourth and fifth charge, it has been stated that the tenders were awarded through auction by the committee appointed for the purpose where the petitioner had no role to play.

With respect to sixth charge, which relates to the settlement of leases of agricultural farms, the submission is that the same were finalised in favour of the highest bidder in auction.

The argument is that all the aforesaid charges do not otherwise also make out any case against the petitioner of financial irregularity or abuse of the powers of Adhyaksha or persistent failure in performance of her duties. Therefore, on the basis of the said charges, neither the financial and administrative powers of the petitioner could have been ceased nor formal enquiry could have been ordered against her.

In support of her specific case that all the three members of Zila Panchayat belonging to the ruling party BSP with a motivated design made the complaint which does not bear any truth, it has been brought to the notice of the Court that all the three complainants have been named in the three-member committee to discharge the functions aforesaid; meaning thereby that by the impugned order, the members belonging to the ruling party have been given charge of the office of Adhyaksha and the sitting Adhyaksha has been illegally restrained from functioning as such.

The submission is that a complainant cannot be a member of the committee, but here all the three complainants form the three-member committee to discharge the functions of Adhyakshaha till the conclusion of the final regular enquiry against the petitioner, which speaks volumes of the mala fides of the respondents in passing the impugned order.

In support of the aforesaid submissions, reliance has been placed on various cases including the case of Smt. Chinta Yadav v. State of U.P. and Ors. Writ Petition No. 1609 (M/B) of 2008 decided by a Division Bench of this Court on 1.4.2008, in which one of us (Pradeep Kant, J.) was a member, against which judgment, we are informed that two S.L.Ps were filed before the Apex Court and both were dismissed. In the said case, reliance was placed upon the cases of Kesari Devi (Smt.) v. State of U.P. and Ors. 2005 (3) UPLBEC 2727 and State of U.P. and Ors. v. Janki Devi Pal (Smt.) (2003) 1 UPLBEC 908, wherein the impugned orders were set aside on the ground that in a matter of removal of elected Adhyaksha under the Rules of 1997, preliminary enquiry cannot be made by an officer below the rank of District Magistrate. Recently, in Writ Petition No. 3046 (M/B) of 2010 in re: Smt. Kamla Devi v. State of U.P. and Ors. this Court has reiterated the same view.

Sri Mukund Tiwari, learned Additional Chief Standing Counsel, in defence of the impugned order, could not dispute that the complaint was not filed in accordance with the provisions of Rule 3(3) and there was an embargo under Rule 3(5) of the Rules, 1997 that a complaint, which does not conform to the provisions aforesaid of Rule 3, would not be entertained.

He also could not justify the action of the State Government in appointing all the three members, who were complainants, allegedly belonging to the ruling party (BSP) to form the three-member committee.

Learned State Counsel, however, submitted that though the District Magistrate had asked the Additional District Magistrate (Finance and Revenue) to hold an enquiry, who in turn asked the Apar Mukhya Adhikari to furnish comments and also the petitioner''s comments, but in fact, the District Magistrate has submitted a report under his own signatures after application of his mind on the report submitted to him, therefore, it cannot be said that it was not an enquiry conducted by the District Magistrate.

In respect to the plea that the charges were not proved, learned State Counsel submitted that this is only a prima facie satisfaction of the District Magistrate about the correctness of the charges and it is only in a formal enquiry that the charges are required to be proved beyond doubt.

We are prima facie satisfied, in view of the pronouncements referred to above, and looking to the provisions of the Act, 1961 and the Rules, 1997 that the joint complaint made by the three members does not conform to the provisions of Rule 3(3) of the Rules, 1997 as it was not verified as per the mandatory requirement and, therefore, the same could not have been entertained by the State Government in view of Sub-section (5) of Rule 3. (See the case of Sudesha Malik v. State of U.P. and Ors. Writ Petition No. 8556 (M/B) of 2008 decided on 11.5.2010.)

We are also satisfied that the District Magistrate being the authorised/nominated officer under the statutory Rule 4 of the Rules, 1997 to hold a preliminary enquiry against Adhyaksha and such a direction having specifically been issued by the State Government in its order dated 12.4.2010, the preliminary enquiry could have been conducted only by the District Magistrate himself and not by any other officer below in rank to him, as the District Magistrate had no authority to sub-delegate the aforesaid power to any other officer.

On going through the charges, prima facie it appears that none of the charges could be said to be of serious nature so as to constitute a misconduct calling for an action against the petitioner under the provisions of Section 29 of the Act, 1961 read with its proviso, nor this is a case of abuse of powers of Adhyaksha by the petitioner, nor of any financial irregularity or misappropriation of funds of Zila Panchayat, muchless for her own benefit or benefit of her own family members or relatives.

In the case of Tarlochan Dev Sharma Vs. State of Punjab and Others, the Apex Court, while dealing with the removal of a President of the Council under Punjab Municipal Act of 1911, held in para 6 as under:

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.... 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.

In para 11, the Apex Court observed as under:

A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention.... The Legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action of error of decision.

In a recent case Sharda Kailash Mittal Vs. State of M.P. and Others, the Apex Court has reiterated the same view and after considering the charges levelled against the Adhyaksha under the M.P. Municipalities Act, 1961, observed as under:

In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke the extreme power u/s 41-A.

The Apex Court set aside the order of removal of Adhyaksha.

We, therefore, stay the operation of the impugned order dated 8.7.2010, passed by the respondent No. 1 and direct that the petitioner shall be allowed to discharge her powers, both financial and administrative, till further orders of the Court with immediate effect. In the meantime, no formal enquiry shall be held nor any order in pursuance thereof shall be passed.

The respondents shall be at liberty to file an application for vacation of this interim order while filing the counter affidavit.

List the writ petition itself for hearing in the month of September, 2010 on priority basis.