- (1.) THIS petition arises out of an order passed by the State Government in exercise of its powers under the First proviso to sub-section (2) of Section 48 of the U. P. Municipalities Act, 1916, by which the petitioner, who is the Chairman of Nagar Panchayat, Dasna, Ghaziabad, has been deprived of his rights to exercise the financial and administrative powers in view of the charge indicated in the show-cause notice dated 24. 10. 2008. In view of the decisions, which have been cited at the Bar, we are of the opinion that the questions raised in this petition and that arise out of the interpretations given by this Court in the Division Bench decisions to be referred by us hereinafter, requires an authoritative pronouncement on the questions so raised, hence this reference.
(2.) THE facts shorn of details that have led to the filing of this petition are that the petitioner, after having been elected as Chairman, undertook the exercise of getting certain bye-laws notified, framed by the Nagar Panchayat for the purposes of levying parking fee on transport vehicles. It has been stated in the petition that previously such parking fee was realised through contractors by private negotiation in the absence of any valid bye-laws. After the publication of the bye-laws, the Nagar Panchayat decided to hold an auction for the said purpose and the same was duly notified and published in 2 newspapers on 1. 6. 2007 and 4. 6. 2007. It is stated that 6 persons participated in the said auction and on 8. 6. 2007, the auction was knocked down in favour of one Ch. Osman for a sum of Rs. 36,000/ -. A resolution was passed by the Nagar Panchayat and a collective decision was taken to award the said contract. It is submitted that the proceedings were carried out through an appropriate advertisement in 2 newspapers and after holding an auction for the same. After one month of the said auction, a complaint was made by a third person along with an offer of Rs. 50,000/- for the same contract stating therein that the contract has been entered into surreptitiously, upon which an inquiry was conducted. THE contract was cancelled by the District Magistrate in view of the offer made by the complainant to the tune of Rs. 50,000/-, where after a fresh auction was held on 4. 8. 2007 in which the bid went up to Rs. 7 Lac. This bid was made by the same Ch. Osman, who had earlier succeeded in getting the contract for Rs. 36,000/ -. In response to a query made by the Sub-Divisional Magistrate, a reply was submitted by the petitioner. It is also to be noted from the reply of the petitioner dated 28. 11. 2007 that the complainant, who had made an offer of Rs. 50,000/- did not increase his bid above the said amount. THE Executive Officer of Nagar Palika submitted a report in response to the notice of the Sub-Divisional Magistrate on 6. 12. 2007. A report was submitted by the Sub-Divisional Magistrate on 22. 2. 2008 which was forwarded by the District Magistrate to the State through his letter dated 29. 2. 2008. THE State Government issued a show cause notice after 8 months which is impugned in the present writ petition and simultaneously passed the order restraining the petitioner from exercising his financial and administrative powers. THE petitioner has submitted his reply to the show cause notice on 8. 11. 2008 but no final orders have been passed by the State Government till date. Before passing of the order, the petitioner was not given any opportunity and was made non-functional. The questions that have been raised are primarily to the same effect that have been considered by this Court in the case of Imran Masood v. State of U. P. and others, 2007 (10) ADJ 350 (DB), and in the case of Rekha (Kinner) v. State of U. P. and others, 2008 (3) ADJ 315 (DB), and it has been urged that the matter requires reconsideration keeping in view the observations made by this Court in another Division Bench decision in the case of Smt. Vimla v. State of U. P. and others, 2008 (10) ADJ 128 (DB) (LB ). It has further been submitted that even though not directly on the same provisions yet on a similarity of circumstances, the decision in the case of Smt. Chinta Yadav v. State of U. P. and others, 2008 (3) ESC 1673 (AII) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition. The questions that are required to be considered are, as to whether the Chairman of a local body governed by the provisions of U. P. Municipalities Act, 1916, before being proceeded with under the First proviso to sub-section (2) of Section 48 is required to be associated with a preliminary inquiry and given an opportunity, before an order is passed there under, and secondly in order to ascertain as to whether the charges are groundless or any optima facie case exists warranting such an action does require the setting out and recording of a separate satisfaction by the State Government, even if. the material on the basis of which the notice has been issued for removal is one and the same for making an interim arrange ment. This further raises a question as to whether the words "reason to believe" occurring in the proviso referred to herein above requires some exercise to be undertaken or the order of restraining the Chairman from exercising financial and administrative powers has to follow automatically as a consequence and is ipso sure in nature.
(3.) THE proviso to Section 48 (2) is quoted herein below for ready reference: "[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]. " The question which has to be gone into upon an issuance of such a notice is, as to whether the State Government has unfettered discretion and an order has to necessarily follow restraining the Chairman from exercising financial and administrative powers. What is meant by discretion need not detain us in view of what has been considered and laid down by the Apex Court in the case of Reliance Airport Developers, (2006) 10 SCC 1 (paras 26 to 35), which is quoted herein below: "26. While exercising the discretion, certain parameters are to be followed: " 'discretion', said Lord Mansfield in R. v. Wilkes, 'when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular. " (See Craies on Statute Law, 6th Edn. , p. 273 and Ramji Dayawala and Sons (P) Ltd. v. Invest Import, SCC p. 96, para 20 ). 27. "discretion" undoubtedly means judicial discretion and not whim, caprice or fancy of a Judge. (See Dhurandhar Prasad Singh v. Jai Prakash University.) Lord Halsbury in Susannah Sharpen. Wake field considered the word "discretion" with reference to its exercise and held: (All ER p. 653 F-G) ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 28. "discretion" when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular. 29. Though the word, "discretion" literally means and denotes an uncontrolled power of disposal yet in law, the meaning given to this word appears to be a power to decide within the limits allowed by positive rules of law as to the punishments, remedies or costs. This would mean that even if a person has a discretion to do something the said discretion has to be exercised within the limit allowed by positive rules of law. The literal (sic legal) meaning of the word "discretion" therefore, unmistakably avoids untrammeled or uncontrolled choice and more positively points out at there being a positive control of some judicial principles. 30. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection: deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colour able glosses and pretences, and not to do according to the will and private affections of persons. 31. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care, therefore, where the Legislature concedes discretion it also imposes a heavy responsibility. 32. The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable, said Lord Camden, L. C. J. , in Hindson and Kersey. 33. If a certain latitude or liberty accorded by statute or rules to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review. 34. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent Judges in somewhat different forms of words but with substantial identity. When a statute gives a Judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet (Per Willes J. in Lee v. Budge Railway Co. and in Morgan v. Morgan ). 35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows: "discretion".- Power of the Court or arbitrators to decide as they think fit. The word 'discretion' connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. [corpus Juris Secundum, Vol. 27, page 289 as referred in Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri, SCC p. 311, para 6: SLT at p. 430, para 6] 'a discretion', said Lord WRENBURY, 'does not empower a man to do what he likes merely because he is minded to do so, he must in the exercise of his discretion do not what he likes but what he ought, in other words, he must, by the use of his reason, ascertain and follow the course which reason dictates. ' (Roberts v. Hopwood ). This approach to construction has two consequences: the statutory discretion must be truly exercised, and when exercised it must be exercised reasonably. (MAXWELL) ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 'discretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion:-Rookes case according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. Lord HALSBURY LC in Susannah Sharp v. Wakefield, at p. 179 referred to in Siben Kumar Afonda v. Hindustan Petroleum Corporation Ltd. , (AIR pp. 333-35 ). (See also Aero Traders Pvt. Ltd. v. Ravindra Kumar Suri, SCC (3) p. 311, para 6: SLT at p. 430, para 6; Man Mai Sharma v. Bikaner Sankari Upbhokta Bhandar, Alr at p. 18 and Rekha Bhasin v. Union of India, AIR at p. 322 ). 'discretion', Lord MANSFIELD stated in classic terms in, John Wilkes case, must be a sound one governed by law and guided by rule, not by humour; Lord DENNING put it eloquently in Breem v. Amalgamated Engineering Union, that in 'a Government of Laws' 'there is nothing like unfettered discretion immune from judicial -reviewability'. Courts stand between the executive and the subject alert, to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance, between equity and colorable glosses and pretences and not to do according to ones wills and private affections. Lord BRIGHTMAN elegantly observed in Chief Constable of North Wales Police v. Evans, that: 'judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made. ' The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life. " Wide enough in all conscience is the field of discretion that remains. ' BENJAMIN CARDOZO in The Nature of Judicial Process. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " The word 'discretion' standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the Legislature concedes discretion it also imposes a heavy responsibility. (See National Insurance Co. Ltd. v. Keshav Bahadur, SCC p. 375 para 10: AIR at p. 1584, para 10 ). ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " The power to decide within the limits allowed by positive rules of law as to punishments, remedies or costs and generally to regulate matters of procedure and administration; discernment of what is right and proper. [see Article 136 (1), Constitution)] DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jai singhania v. Union of India, AIR at p. 1434 ). When any thing is left to any person, Judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law, (Tomlin ). In its ordinary meaning, the word signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty of power of acting without other control than ones own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law. (2 Inst. 56,298; Tomlin) ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " There (may) be several degrees of Discretion, discretio generalist, discretio legalis, discretio specialis, - Discretio generalis is required of every one in everything that he is to do, or attempt; 'legalis discretio', is that which Sir Coke meaneth and setteth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law; The third discretion is where the laws have given no certain rule. . . . and herein discretion is the absolute judge of the cause, and gives the rule. ' (Callis. 112. 113);