- (1.) HEARD learned counsel for the petitioner and the learned Standing Counsel for the respondent Nos. 1 to 3. It is not necessary to issue notice to the respondent No. 4 at this stage in view of the nature of the order that is proposed to be passed. The petitioner who is a member of Nagar Panchayat, Joya, District Amroha has been removed in exercise of the powers vested in the State Government under Section 40(3) of the Uttar Pradesh Municipalities Act, 1916. The impugned order dated 21.8.2014, records that the petitioner is responsible for causing loss and damage to the funds and property of the municipality as per the findings recorded therein and consequently his removal is justified.
(2.) THE petitioner had taken a stand in his reply which was sent by Registered Post on 11.3.2014 as per Annexure -4 to the writ petition that the alleged incident of selling trees and bricks and the functioning of the petitioner as a mutwalli of the Kabristan, when such decision was taken, was much prior to the petitioner becoming a member of the Nagar Panchayat. The resolution under which the said transactions took place are dated 4.3.2012. At that point of time the petitioner was not a member of the Nagar Panchayat, therefore, the provisions of Section 40(3) of the Uttar Pradesh Municipalities Act, 1916 are not attracted.
(3.) SHRI Sisodia contends that no action of the petitioner was involved during his period of membership. Shri Rajeev Sisodia, learned counsel for the petitioner submits that this contention had been raised in the reply of the petitioner which has been completely overlooked by the respondents and the State Government while proceeding to rely on the report that was submitted for the purpose of taking action, has erred by not recording any finding on this aspect. From a perusal of the impugned order dated 21.8.2014, we do not find any recital indicating consideration of this relevant aspect as pointed out by the learned counsel for the petitioner as contained in his reply that was sent through Registered Post on 11.3.2014. Consequently, in our opinion the order impugned gets vitiated for non -consideration of this material and relevant fact which is necessary for invoking the powers under Section 40(3) of the U.P. Municipalities Act, 1916. The order impugned dated 21.8.2014, is, therefore, set -aside and the writ petition is allowed with liberty to the State Government, respondent No. 1 to proceed to pass a fresh order after consideration of the aforesaid aspect within a period of three months from the date of presentation of a certified copy of this order. With the aforesaid observations, the writ petition is allowed.;