Allahabad High Court
Smt. R.S. Khan vs State Of U.P. And Ors. on 13 December, 2004
Equivalent citations: 2005(2)AWC1923, 2005(1)ESC515
Author: V.M. Sahai
Bench: V.M. Sahai, Tarun Agarwala
JUDGMENT V.M. Sahai, J.
1. The short question that arises for consideration in this petition is what would be the effect of dismissal of earlier writ petition directed against removal of petitioner from the office of President, Nagar Palika Parishad by the State Government on 18.3.1999, as infructuous on 16.11.2002.
2. This petition challenges removal of petitioner from the office of President, Nagar Palika Parishad, Khurja, Bulandshahr (in short NPP), in subsequent election held in November 2000. She was administered oath on 2.12.2000, by Sub-Divisional Magistrate, Sikandrabad. On a complaint made by some members of the Board to the State Government through Commissioner that the Board was not properly constituted as oath was administered to 14 members only and the President was acting arbitrarily and against the interest of the Board. An inquiry was made and report was submitted by the Chief Development Officer to the District Magistrate, Bulandshahr. He found various irregularities amounting to misconduct. On this report the Commissioner recommended for necessary action by the State Government. The Government issued a show cause notice on 10.8.2001, to the petitioner. The petitioner twice took time but did not file any reply. Therefore, the State Government on 12.12.2001, presuming that the petitioner was deliberately delaying and she had nothing to say, found that the allegations were correct and passed an order removing the petitioner from the office of President, NPP. The petitioner challenged the order dated 12.12.2001, by means of writ petition No. 44438 of 2001. The Writ Petition was allowed on 16.11.2002 and the order dated 12.12.2001, was set aside. The High Court held that the State Government passed the order without recording proper reasons. It was held that the petitioner might not have filed full reply but an interim reply having been filed it should have been considered. The State Government filed Civil Appeal No. 3262 of 2003, before the Supreme Court which was disposed of on 8.8.2003, modifying the order of the High Court and remitting the matter back to the concerned authorities for fresh examination. It further directed that the respondent shall not assume the office which she had held but it will be open to the authorities to consider the question of reinstatement, on representation to be made by the petitioner within a week and, the entire matter was to be decided within one month from 8.8.2003.
3. In compliance of the order of the Supreme Court the petitioner made a representation on 11.8.2003 before the State Government. The State Government on 22.10.2003 directed the Commissioner, Meerut to inquire into the matter and submit a report within one month. The Commissioner submitted his report on 22.11.2003 exonerating the petitioner of other charges, but found her guilty of 5 charges. He further recorded in his report that the petitioner could not be held guilty of the resolution passed by her on 11.12.2000 and her case for reinstatement as President may be considered. The report of the Commissioner was approved by the Minister for Urban Development on 10.12.2003. But from the record produced by the Chief Standing Council it is clear that on the representation of various persons no action for reinstatement was taken. The petitioner, it appears, came to know of the approval by the Minister for Urban Development and Commissioner's recommendation. Since the order of reinstatement was not issued and the matter was being delayed, the petitioner sent a fax message on 16.12.2003 to the respondents as well as Minister for Urban Development for issuing order of reinstatement. The State Government called for report from the Director Local Bodies, U.P., Lucknow. Acting on it the representation of the petitioner was rejected on 16.3.2004. A copy of the order was served through the District Magistrate Bulandshahr by letter dated 15.4.2004. The petitioner challenged the order dated 16.3.2004, passed by the State Government in the present writ petition and has prayed that she be reinstated as President of NPP in pursuance of the order dated 10.12.2003.
4. In the counter-affidavit filed by Under Secretary, Nagar Vikas, U.P. Secretariat, Lucknow on behalf of respondent Nos. 1 and 2 it had been stated in paragraph 5 that the President had no authority to administer oath to the elected members of the NPP. Under the provisions of the Section 43-D(4) of the U.P. Municipalities Act, 1916 (in short the Act) the District Magistrate and in his absence Deputy Collector nominated by him could have administered oath to the elected members or President of the NPP. Therefore, the first resolution dated 11.12.2000 and the other resolutions passed in the meeting dated 11.12.2000 were contrary to law. The complaint made by the members of the NPP was to the effect that on 11.12.2000 oath was administered to only 11 members and no other resolution was passed. The State Government directed for holding of inquiry through the Chief Development Officer and he had reported that on 11.12.2000, the meeting was required to be called under Section 86 by the President, but out of 25 members of the Board only 14 elected members were administered oath and 11 members could not be administered oath, therefore, the Board could not be said to have been constituted on 11.12.2000. Consequently, the resolutions passed on 11.12.2000 were totally illegal and contrary to law. The State Government issued show cause notice to the petitioner on 10.8.2001, but she did not submit her reply on one pretext or the other. She had been provided all relevant records that were relied by the inquiry officer. The State Government after waiting for about four months passed the order on 12.12.2001 removing her from the office of President NPP. In compliance of the directions of the Supreme Court dated 8.8.2003, the petitioner filed a representation on 11.8.2003. Inquiry was held by the Commissioner. He gave opportunity of hearing on 16.9.2003 to the petitioner and submitted his report. Thereafter, another inquiry was held by the Director Local Bodies, U.P., Lucknow who found the petitioner guilty of misconduct. The representation of the petitioner was rightly rejected by the State Government.
5. In the rejoinder-affidavit it has been stated that the resolutions passed on 11.12.2000 was never acted upon as its implementation was stayed by the Commissioner on 20.7.2001. The petitioner and 13 members were administered oath by Sub-Divisional Magistrate, Sikandrabad on 2.12.2000 and the remaining 11 members were administered oath by the petitioner on 11.12.2000. Rules regarding convening the meeting for administration of oath or affirmation to the President and Members of the Board have been framed. According to Rule 4 of the said Rules the District Magistrate or the Deputy Collector shall administer the oath or affirmation to the President and every member of the Board. The oath or affirmation to the President or member who fails or is otherwise unable to attend the meeting convened by the District Magistrate under Sub-section (4) of Section 43-D shall, subject to the provisions of Sub-section (2) of said section, be administered oath at a subsequent meeting of the Board by the person presiding at such meeting. After 2.12.2000 the meeting of the Board was held on 11.12.2000 which was presided over by the petitioner and she administered oath to the remaining 11 members on 11.12.2000. The oath administered by the petitioner was challenged before this Court in Writ Petition No. 24984 of 2001 decided on 11.7.2001 and this Court had held that the oath administered by the petitioner to 11 members was valid, therefore, it cannot be said that the petitioner committed any misconduct as provided by Section 48 (2) (vii) of the Act.
6. Smt. Rekha Rani and Mohd. Rafeeq on their request were impleaded as respondent Nos. 5 and 6 in this writ petition. Smt. Rekha Rani is the Vice-President and Sri Rafeeq is a Corporator of ward No. 15. He had filed counter-affidavit and had stated that as per report of the District Magistrate, Bulandshahr submitted to the Secretary Nagar Vikas Anubhag- 9, U.P. Lucknow on 26.9.2002, a loss of Rs. 75,39,756/-, had been caused to the NPP by the petitioner from the date she assumed charge of the office of President. It is further stated that 17 Corporators of NPP and 5 others filed writ petition No. 26449 of 2001, writ petition No. 44025 of 2001, and writ petition No. 2855 of 1997. The petitioner had unauthorisedly enhanced her financial power from Rs. 20,000/- to 2,00,000/-. She also made illegal appointment of employees without there being any sanctioned post. She sanctioned proposals for purchase of mobile phones and computers without obtaining any permission from the State Government. She had granted 99 years lease of the property of Jal Kal Compound in favour of her husband Abdul Saleem Khan. Writ Petition No. 26449 of 2001 was filed by Sri Mahesh Chandra and 16 other corporators with the prayer that the petitioner is disqualified for being elected as President of NPP in view of her inherent disqualification under Section 48(4) of the Act, which provides that if the petitioner is removed under Section 48(2) (b) (vi) and (vii) of the Act, then she could not contest the election for another term. In paragraph 8 of the counter-affidavit it has been stated that the petitioner had been removed from the office of the President on 18.3.1999 on the allegations of appointing 113 sweepers without any sanction of posts and payment was made to the appointees from the fund of NPP. She had filed writ petition No. 12246 of 1999, challenging the order of removal dated 18.3.1999 passed by the State Government. Writ Petition No. 26449 of 2001 was disposed of on 23.7.2001 directing the respondents to proceed against the petitioner under Section 48(2) of the Act and the State Government was to decide the matter of removal expeditiously, but by mistake in the judgment the reference of writ petition No. 48922 of 1999 was transcribed instead of Writ Petition No. 12246 of 1999. Review petition filed against order dated 23.7.2001 was dismissed on 10.5.2002 with the observation that the petitioner may raise her objection in Writ Petition No. 12246 of 1999. There are other allegations made in the counter affidavit against the petitioner which are not relevant for deciding the controversy involved in this writ petition.
7. In paragraph 12 of the rejoinder affidavit filed to the counter-affidavit filed by respondent Nos. 5 and 6 it had been stated that Writ Petition No. 44025 of 2001 was filed by some impostor and not by the petitioner. It was dismissed in default at fresh stage. This aspect of the matter had been considered by this court in its earlier decision in Writ Petition No. 44438 of 2001. The appointment of 113 sweepers was made during the tenure of Smt. Padma Upadhyaya. However, these appointments were cancelled. The allegations are with regard to earlier tenure of the petitioner and it could not be taken into account while considering the matter of subsequent tenure.
8. Writ Petition No. 12246 of 1999 had been dismissed as infructuous though the order has been signed by the Bench but no date has been mentioned. The order sheet also does not mention any date of dismissal. We had put a question to Sri Vinod Sinha, Advocate who was counsel for the petitioner in the aforesaid petition and he replied that the writ petition was listed along with Writ Petition No. 44438 of 2001, in which judgment was reserved on 13.11.2002, it was delivered on 16.11.2002, and the Writ Petition No. 12246 of 1999 was also dismissed as infructuous on 16.11.2002. In view of the statement made by Sri Vinod Sinha, we accept the date of dismissal of Writ Petition No. 12246 of 1999 to be 16.11.2002.
9. We have heard Sri Vinod Sinha learned counsel for the petitioner, Sri C.B. Yadav, learned Chief Standing Counsel appearing for respondent Nos. 1 to 4 as also Sri Yogesh Kumar Saxena learned counsel appearing for respondent Nos. 5 and 6, Sri C.B. Yadav had produced the record of the State Government.
10. Sri Yogesh Kumar Saxena the learned counsel for the respondent raised a preliminary objection that since the removal order dated 18.3.1999 had not been set aside by this Court, therefore, the petitioner would be disqualified to contest the election of President held in November 2000. Since this question raises an important issue as to what would be the effect, in law, if a petition is dismissed as infructuous. In our opinion it goes to the root of the matter, it is necessary to notice material facts and the legal position. Smt. Padma Upadhyaya was elected President of NPP. She resigned. The post of President NPP fell vacant in 1997. For the remaining term, in the election held on 12.5.1997, the petitioner was elected President. She took oath on 17.5.1997. The State Government removed the petitioner on 18.3.1999, from the office of President. She challenged the order of removal in Writ Petition No. 12246 of 1999 and this Court on 26.3.1999 stayed the order of removal. The petitioner continued to function as President under the interim order till her term came to an end. She again contested the election of President and was elected and took oath on 2.12.2000. She had been removed by the State Government on 12.12.2001. Writ Petition No. 12246 of 1999 was dismissed by a Division Bench as infructuous on 16.11.2002. The order is extracted below :
"This petition has become infructuous as the term of the petitioner has expired. The petition is dismissed as infructuous."
11. It is necessary now to examine relevant provisions of Section 48(2) (a) and (b) Sub-clauses (vi), (vii), (viii) and Section 48(4) of the U.P. Municipalities Act, 1916, which is extracted below :
"(2) Where the State Government has, at any time, reason to believe that--
(a) there has been a failure on the part of the President in performing his duties, or
(b) the President has--
(vi) been guilty of misconduct in the discharge of his duties; or
(vii) during the current or the last preceding term of the [Municipality], acting as President or Vice-President, or as Chairman of a Committee, or as member or in any other capacity whatever, whether before or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976, so flagrantly abused his position, or so wilfully contravened any of the provisions of this Act or any rule, regulation or bye-law, or caused such loss or damage to fund or property of the [Municipality], as to render him unfit to continue to be President; or
(viii) been guilty of any other misconduct whether committed before or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976, whether as President or as Vice-President, exercising the powers of President, or as Vice-President, or as member; or xxx xxx xxx it may call upon him to show cause within the time to be specified in the notice why he should not be removed from office.
xxx xxx xxx (4) A president removed under Sub-section (2-A), shall also cease to be a member of the [Municipality] and in case of removal on any of the grounds mentioned in Clause (a) or Sub-clause (vi), (vii) or (viii) of Clause (b) of Sub-section (2) shall not be eligible for re-election as President or member for a period of five years from the date of his removal."
12. Section 48 Sub-section (4) emphatically provides that if a President had been removed by the State Government on any of the grounds mentioned in Clause (a) or Sub-clause (vi), (vii) or (viii) of Clause (b) of Sub-section (2), then he, or she as the case may be, shall not be eligible for re-election as President or member for a period of five years from the date of his removal.
13. Sri Vinod Sinha the learned counsel for the petitioner had vehemently urged that the petitioner continued as President under the interim order of this Court and before the expiry of her term the writ petition was not decided and was dismissed as infructuous, therefore, the petitioner would not be disqualified. He further urged that writ petition No. 44438 of 2001 challenging the removal order dated 12.12.2001 was allowed on 16.11.2002 which was modified by the Apex Court on 8.8.2003, therefore, now it is not open to respondents to raise the preliminary objection which is liable to be rejected. We have carefully examined the decisions dated 16.11.2002 and 8.8.2003. In our opinion, none of the objections have any substance. Writ Petition No. 44438 of 2001, directed against removal of petitioner from the office of President in the election held in November 2000 was allowed as proper opportunity of hearing was not afforded to the petitioner and the Apex Court directed the State Government to pass a fresh order after affording opportunity of hearing to the petitioner. On the date this writ petition was filed, the earlier petition removing the petitioner from the office of President on 18.3.1999 was pending. It was dismissed, as infructuous on 16.11.2002, the date on which the latter petition challenging her removal from the office of President in the election held in November 2000 was allowed. The State Government being aggrieved by the order in latter petition approached the Apex Court. It could not have been aggrieved by dismissal of earlier petition as infructuous. Further, the decision dated 16.11.2002, by the High Court was not on merits. It was for failure, to give opportunity of hearing. Even the Apex Court modified the order of High Court on short ground that if the High Court was of the opinion that the order was passed without proper consideration of reply by the petitioner, it should have directed for reconsideration. Thus, the question whether the petitioner was eligible for election or not, neither arose nor was decided.
14. Sri Vinod Sinha has relied on the interim order dated 26.3.1999 under which the petitioner continued till her term came to an end. The order reads as under :
"Until further orders operation of the impugned order dated 18.3.1999 shall remain stayed."
15. The Apex Court had considered the effect of interim order in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, AIR 1992 SC 1439. In paragraph 10 at page 1444 it had held as below :
"...While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence..."
16. This decision clearly lays down that the stay of the operation of an order does not mean that the removal order dated 18.3.1999 ceased to exist or it had been wiped out. The removal order till it is quashed would remain in existence. The word "infructuous" had been defined in The New Shorter Oxford English Dictionary, 1993 edition as below :
"Infructuous" has been mentioned as "Not bearing fruit; unfruitful, barren; unprofitable, ineffective."
17. The effect of dismissal of writ petition as infructuous did not result in setting aside, or quashing the order of removal, dated 18.3.1999. The petitioner should have requested the Court to decide the petition on merits, or she could have filed a review petition. She did not challenge the order, dated 16.11.2002, dismissing her Writ Petition No. 12246 of 1999 as infructuous after expiry of her term. Invita beneficium non datur. The law confers upon a man no right or benefits which he does not desire, whoever waives, abandons or disclaims a right will loose it. The removal order would cast a stigma on the petitioner. It is true that after the petitioner's term elapsed, a writ of mandamus cannot be issued, but a writ of certiorari to quash the removal order could have been issued. The effect of the quashing the order would have been that the removal order, dated 18.3.1999, would have ceased to exist and the position existing prior to the removal order would have been restored. Therefore, it cannot be said that after the expiry of term of the petitioner as President, she had no longer any interest in getting the removal order quashed, because if the removal order remained intact, the petitioner would be disqualified for contesting subsequent election.
18. We hold that since the order of removal, passed by State Government, under Section 48 (2) (b) (vii) of the Act, against the petitioner on 18.3.1999, became operative after the dismissal of her writ petition as infructuous, she was not eligible for re-election as President, or member, for a period of five years, from the date of her removal, and was not eligible, under Sub-section (4) of Section 48 of the Act to contest the election of President held in November, 2000.
19. Since we have upheld the preliminary objection of respondents and held that the petitioner was disqualified from contesting the election, it is not necessary for us to consider other arguments raised by the learned counsel for the parties.
20. For the reasons given above, this writ petition fails and is accordingly dismissed.
21. Parties shall bear their own costs.