- (1.) The issue in controversy A Division Bench of this Court, finding itself "unable to accept the law" laid down in a decision of a Full Bench in Hafiz Ataullah Ansari Vs State of U P, 2011 3 ADJ 502 referred the following questions for determination by a larger Bench: "(a) Whether the Full Bench judgment in the case of Hafiz Ataullah Ansari Vs. State of U.P. lays down the correct law; (b) Whether in view of the language of the proviso to Section 48(2) of the U P Municipalities Act, there can be any proceedings for removal of the President without his financial and administrative powers ceasing, under the proviso; (c) Whether cessation of financial and administrative powers of the President follows automatically with the issuance of a show cause notice under Section 48 (2) calling upon him to show cause as to why he may not be removed; (d) Whether any separate order for cessation of financial and administrative powers of the President is required to be made while issuing a notice under the proviso to Section 48(2) or such cessation follows automatically; and (e) Whether in view of the specific language of Section 48(2), the question of opportunity of hearing before cessation of the financial and administrative powers of the President stands excluded."
(2.) Since a decision rendered by a Bench of three Judges which constituted the Full Bench in Hafiz Ataullah Ansari has been doubted, the reference comes before this Bench of five Judges. Removal of the President of a Municipality
(3.) The issue which falls for determination, turns upon the provisions of Section 48 of the Uttar Pradesh Municipalities Act, 1916(Municipalities Act). Sub-section (2) of Section 48 deals with the removal of the President of a municipality and is in the following terms: "48. Removal of President.- (1) ...... [omitted] (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- (i) incurred any of the disqualifications mentioned in Sections 12-D and 43-AA; or (ii) within the meaning of Section 82 knowingly acquired or continued to have, directly or indirectly or by a partner, any share or interest, whether pecuniary or of any other nature, in any contract or employment with, by or on behalf of the Municipality; or (iii) knowingly acted as a President or as a member in a matter other than a matter referred to in Clauses (a) to (g) of sub-section (2) of Section 82, in which he has, directly or indirectly, or by a partner, any share or interest whether pecuniary or of any other nature, or in which he was professionally interested on behalf of a client, principal or other person; or (iv) being a legal practitioner acted or appeared in any suit or other proceeding on behalf of any person against the Municipality or against the State Government in respect of nazul land entrusted to the management of the Municipality or acted or appeared for or on behalf of any person against whom a criminal proceeding has been instituted by or on behalf of the Municipality; or (v) abandoned his ordinary place of residence in the municipal area concerned; or (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 as Chairman of a Committee, or as member or in any other capacity whatsoever, 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 willfully contravened any of the provisions of this Act or any rule, regulation or bye-laws, or caused such loss or damage to the 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 member; or (ix) caused loss or damage to any property of the Municipality; or (x) misappropriated or misused Municipal fund; or (xi) acted against the interest of the Municipality; or (xii) contravened the provisions of this Act or the rules made thereunder; or (xiii) created an obstacle in a meeting of the Municipality in such manner that it becomes impossible for the Municipality to conduct its business in the meeting or instigated someone to do so; or (xiv) willfully contravened any order or direction of the State Government given under this Act; or (xv) misbehaved without any lawful justification with the officers or employees of the Municipality; or (xvi) disposed of any property belonging to the Municipality at a price less than its market value; or (xvii) encroached, or assisted or instigated any other person to encroach upon the land, building or any other immovable property of the Municipality; 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. 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 sub-section and finalization of the proceedings under sub-section (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.";