Decided on March 04,2008



DHIRENDRA MISHRA,J. - (1.)THE Petitioner is an elected Presiden of Nagar Panchayat, Gunderdehi, District Durg. THE Respondent No. 2 issued notice under SECTION 41 (A) of the Municipalities Act, 1961 (for shot, hereinafter referred to as "Act of 1961') dated 11th October, 2006 (Annexure P-1) to the Petitioner mentioning therein that on enquiry by the Dy. Director regarding complaint received against her, all the allegations of irregularies have been found to be proved and, therefore, she should show cause a to why she should not be disqualified from the post of President, Na(sic)r Panchayat, Gunderdehi.
(2.)THE above notice has been impugned by the Petitioner on the grours that:
(i) the notice has been issued by the Under Secretary-respondent No. 2 and the same is without jurisdiction as it has not been issue by the State Government; (ii) by the impugned notice, the Petitioner has been asked to shv(sic) cause as to why she should not be disqualified from the post President, though the disqualification could be ordered under sub-section (2) of Section 41 (A) of the Act of 1961 only while order in removal from the post of President under Sub-section (1) of Section 41(A) of the Act of 1961. Section 41(A) of the Act of 1961 does not confer power to the State Government to disqualify elected president without removing him from the post of president; (iii) the Respondents on the basis of ex-party enquiry conducted against the Petitioner behind his back, have arrived to the conclusion that the changes against the Petitioner stands prove and she should be disqualified; (iv) the Petitioner was elected to the above post as a Congress candidate. There is no material existing or ground exists referable under Section 41(A) of the Act and the notice has been issued malafidely and the same has been issued with preconceived notion at the behest of political pressure without following the procedure prescribed.

In their reply, the Respondents No. 1 and 2 have stated that the instant petition preferred against the show cause notice is not maintainable. The Respondents on strong and weighty reasons after having formed a prima facie opinion to exercise the powers under Section 41 (A) of the Act of 1961 issued the show cause notice to the Petitioner, later on, the enquiry report has also been supplied to the Petitioner on demand, however the Petitioner has not replied the show cause notice till date.

(3.)THE show cause notice has been issued to provide reasonable opportunity of hearing to the Petitioner. Writ petition against show cause notice is not maintainable. No cause of action is available to the Petitioner to challenge the impugned show cause notice and the petition is premature. Section 41 (A) of the Act of 1961 empowers the State Government to remove an elected office bearer of Nagar Panchayat and the same is to be exercised only after affording sufficient opportunity of hearing to the elected office bearer. The objection of the Petitioner that the Under Secretary cannot issue show cause notice on behalf of the State Government is mis-conceived as the business rules of the State Government (Annexure R-2) empowers the Under Secretary to issue on behalf of the State Government.

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