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State Of U.P, Throug... v. Mewa Lal Yadav Opp. ...
Factual and Procedural Background
The respondent was elected a member of the Municipal Board, Bhadohi, in 1953 and in 1955 was elected Senior Vice‑President of the Board; in that capacity he performed the duties of President when necessary. On 12 January 1957 the Commissioner of the Banaras Division, at the instance of the State Government, served a notice under sub‑Sec. (3) of Sec. 40 of the U.P. Municipalities Act calling upon him to show cause why he should not be removed from membership on the ground that he had flagrantly abused his powers while acting as President. A charge‑sheet accompanied the notice alleging two specific instances: (1) that he granted permission to construct an enclosure blocking a public thoroughfare without the required Executive Engineer's approval because the site lay within 220 yards of a Provincial Road; and (2) that he ordered demolition of a house although permission for its construction had been obtained from the Board.
The respondent submitted an explanation on 4 May 1957, disputing the allegations and stating that he could not give a detailed reply because the necessary file had not been supplied to him. By order dated 5 August 1957 the Government directed his removal from membership. The respondent filed a writ petition under Article 226 seeking quashing of the removal order and the proceedings that led to it. Mr. Justice Mehrotra, by an order dated 20 September 1957, allowed the petition and quashed the removal order. The State (and other opposite parties) appealed; the present opinion is by Srivastava, J., disposing of that appeal.
Legal Issues Presented
- Whether the actions alleged (performed while the respondent was "acting as President") could properly be the basis for removal under sub‑Sec. (3) of Sec. 40 of the U.P. Municipalities Act, or whether action, if any, should have been taken under Sec. 48.
- Whether the charge‑sheet's allegations — the two acts specified — were adequate to show that the respondent had "so flagrantly abused in any manner his position as a member" as to render his continuance detrimental to the public interest under sub‑Sec. (3) of Sec. 40; specifically, whether proof or allegation of a sinister or oblique motive was required.
- Whether the respondent was given a reasonable opportunity to explain the charges as required by sub‑Sec. (4) of Sec. 40, having regard to the absence of the relevant file and papers when he filed his explanation.
Arguments of the Parties
Appellants' Arguments
- The State argued that under the statute the State Government was the final authority to decide whether the acts complained of amounted to a flagrant abuse of position; it was sufficient if the acts contravened the Municipalities Act or the bye‑laws, and it was not necessary for the Government to allege any sinister motive.
- It was contended that if the orders passed by the respondent contravened provisions of the U.P. Municipalities Act or the bye‑laws, the Government could reasonably form the opinion that those acts amounted to a flagrant abuse of his position as a member.
Respondent's Arguments
- The respondent contended that the two acts were performed while he was acting as President and hence action could not be taken under sub‑Sec. (3) of Sec. 40 but, if at all, under Sec. 48.
- He argued that the charges were vague and did not relate to grounds of removal under sub‑Sec. (3) of Sec. 40.
- He further argued that no reasonable opportunity had been given to him to show cause because the necessary file and papers were not supplied, preventing him from giving a full explanation.
- In the appeal the respondent also sought to support the High Court's order on the additional ground that his first submission (regarding Sec. 48) was well founded and should have been allowed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shri Bhagwan Das Barnwal v. The State of Uttar Pradesh, 1956 A.L.J.R 409 | Used by the High Court to support the view that acts standing alone might not amount to a flagrant abuse of position unless a sinister motive was alleged. | The opinion cited this case as an authority for the proposition that the acts mentioned in the charge‑sheet, by themselves, could not be held to be a flagrant abuse in the absence of an allegation of sinister motive. The Court relied on its reasoning when assessing adequacy of the charges. |
| Shri Purshottam Chandra v. State of Uttar Pradesh, 1957 A.L.J 885 | Establishes the two conditions precedent for action under Sec. 40(3): (a) the conduct must be in the member's capacity as a member; and (b) the conduct must be such as can amount to a flagrant abuse of his position as a member. Also defines "abuse" in substance as misuse of position for benefit of self or others. | The Court treated this decision as dispositive on the point and followed it to reject the appellants' contention that mere contravention of the Act or bye‑laws sufficed. The opinion quoted and applied Purshottam Chandra to conclude that a member abuses his position when he misuses it for benefit of himself or another, and that mere contravention is not automatically a "flagrant abuse". |
Court's Reasoning and Analysis
The Court proceeded in a structured manner addressing each major contention:
- On the first contention (whether Sec. 48 instead of Sec. 40(3) applied): the Court held that Sec. 48 could not apply because the respondent was not being removed from the office of President. At the relevant times he was not the President; he was a member elected as Vice‑President under Sec. 55 and performed Presidential duties on occasion but did not thereby become the President. The Court emphasized that his only capacity throughout was that of a member, and therefore action under Sec. 40(3) (which applies to members) was not excluded by his having acted as President on particular occasions.
- On the sufficiency and character of the charges under Sec. 40(3): the Court examined the statutory language — "The State Government may remove from the board a member who in its opinion had so flagrantly abused in any manner his position as a member of the board as to render his continuance as a member detrimental to the public interest." It considered the appellants' submission that the Government, as final authority, could treat contraventions of the Act or bye‑laws as constituting a flagrant abuse without alleging sinister motive.
- The Court relied upon Shri Purshottam Chandra to hold that two conditions precedent exist for action under Sec. 40(3): (a) the conduct must be in the member's capacity as a member; and (b) the conduct must be such as can amount to a flagrant abuse of his position. The Court rejected the broad contention that any contravention of the Municipalities Act or bye‑laws by a member necessarily constituted an abuse of position.
- The Court analyzed the ordinary meanings of the words "flagrantly" and "abuse" (noting definitions: flagrantly — "glaringly", "notoriously", "scandalously"; abuse — "misuse", "use for a wrong purpose" or "take a bad advantage") and concluded that "flagrantly abused" requires, even if not an explicit sinister motive, something showing that the member used his position for a wrong purpose or took an advantage of his position he ought not to have taken, in a glaring or scandalous manner.
- Applying that standard, the Court found that the charge‑sheet did not allege that in passing either of the two orders the respondent had in any scandalous way attempted to misuse his position. Consequently, those allegations were insufficient to attract action under sub‑Sec. (3) of Sec. 40.
- On procedural fairness, the Court found that the respondent had a legitimate grievance that he was not given a reasonable opportunity to explain the charges because the papers relevant to the orders had not been made available to him. Although counsel for the appellants argued the respondent never specifically asked for the papers, the Court held that in the circumstances the respondent had mentioned in his reply that he could not give a full explanation without the file, and therefore the authorities should have put the papers at his disposal before taking the drastic step of removal under Sec. 40(3). The Court treated the obligation in sub‑Sec. (4) of Sec. 40 to give an opportunity to explain as requiring, in context, a reasonable opportunity which was not afforded here.
- Because the charges were legally insufficient to support removal under Sec. 40(3) and a reasonable opportunity to explain had not been provided, the Court concluded that the removal order was vitiated.
Holding and Implications
Holding: The Court concluded that the order removing the respondent from membership was invalid and accordingly set it aside. The appeal was dismissed.
APPEAL DISMISSED.
Implications:
- The direct effect on the parties: the respondent's removal from the Municipal Board was quashed and the appeal by the State was dismissed with costs.
- The Court applied existing authorities (notably Shri Purshottam Chandra) and statutory construction to require that, for removal under Sec. 40(3), the conduct must be in the member's capacity as a member and must amount to a flagrant abuse — understood as a glaring misuse of position for a wrong purpose or to take undue advantage. Mere contravention of the Act or bye‑laws, without more, was held not automatically to satisfy that standard in the circumstances of this case.
- The opinion does not elaborate broader doctrinal consequences beyond these holdings; its practical consequence is the invalidation of the particular removal order and the reinforcement of the requirement that members be given a reasonable opportunity, including access to relevant papers, before drastic action under Sec. 40(3) is taken.
Citation note: The summary is confined to and derived exclusively from the text of the provided opinion.
Srivastava, J.:— This is an appeal against a decision of Mr. Justice Mehrotra dated the 20th September 1957 allowing a petition filed by the respondent under Art. 226 of the Constitution.
2. The respondent was elected a member of the Municipal Board Bhadohi in the district of Varanasi in the year 1953. In 1955 he was elected as the Senior Vice-President of the Board. In that capacity he performed the duties of the President whenever it became necessary. On the 12th January 1957 at the instance of the State Government the Commissioner of the Banaras Division served a notice upon him under sub-Sec. (3) of Sec. 40 of the U.P Municipalities Act calling upon him to show cause why he should not be removed from the membership of the Board on the ground that he had flagrantly abused his powers as a member while acting as President of the Board. A charge-sheet containing the following charges accompanied the notice:—
“He has so flagrantly abused his position while acting as President of the Municipal Board, Bhadohi, as to render his continuance as a member deterimental to the public interest, instances whereof are as follows:—
(1) That he, while acting as President, granted permission to Sri Shitla Prasad to construct an enclosure completely blocking the public thoroughfare. This was an encroachment and the previous approval of the Executive Engineer, was not obtained as the site is located within a radius of 220 yards of the Provincial Road.
(2) That he, while acting as President, ordered demolition of the house of Sri Dhantal Gareria residing within limits of the Bhadohi Municipality though he had obtained the permission of the Board for the construction of the said house.”
3. The respondent submitted his explanation on the 4th May 1957 and disputed the allegations made against him. In his explanation he also made a grievance of the fact that as the necessary file had not been supplied to him he was not in a position to give a detailed reply to the charges. The Government considered his reply and by an order dated the 5th August 1957 directed the respondent's removal from the membership of the Board. Aggrieved with that order the respondent filed the writ petition out of which this appeal has arisen and prayed for the quashing of the order of removal and the proceedings in which it had resulted.
4. Three grounds were submitted in support of the application. They were:—
(1) That the two acts to which exception was taken by the State had been performed by him while he was acting as a President. In respect of those acts action could not have been taken under sub-Sec. (3) of Sec. 40 of the U.P Municipalities Act. If at all, action could have been taken under Sec. 48 of the Act.
(2) That the charges were vague and had no relation to the grounds on which the respondent could be removed under sub-Sec. (3) of Sec. 40 of the U.P Municipalities Act.
(3) That no reasonable opportunity had been given to him to show cause against the charges.
5. The first submission was rejected by the learned Judge. He accepted the second submission because in his view the acts mentioned in the charge-sheet standing by themselves could not amount to a flagrant abuse of the respondent's position as a member unless there was a sinister, motive behind them and no such motive had been alleged. Reference was made in support of this view to the case of Shri Bhagwan Das Barnwal v. The State of Uttar Pradesh . 1956 A.L.J.R 409.. The third submission was also accepted. The petition was as a result allowed and the order of the respondent's removal quashed.
6. The three opposite parties to the petition, including the State of Uttar Pradesh, have now preferred this appeal and question the correctness of the view taken by the learned Judge in respect of two submissions which found favour with him. The respondent in his turn seeks to support the order under appeal on the ground that the first submission made by him was well founded and should also have been allowed to prevail.
7. We have no doubt that the first contention of the respondent was rightly rejected. Sec. 48 of the U.P Municipalities Act could not apply to his case because he was not being removed from the office of President. At the time when the action was taken against him he was not the President of the Board. Nor could he claim to have been the President of the Board at the time when he passed the orders which were being objected to on behalf of the State. In his capacity as a member he had been elected as Vice-President Under Sec. 55 of the Act as Vice-President he could perform some of the duties and functions of a President during his absence, but did not on that account become the President. The only capacity which he retained ??? along was that of a member of the Board. It was only as a member that he got elected as a Vice-President and on occasion performed the duties of a President.
8. As to the second submission under sub-Sec. (3) of Sec. 40 of the Act.
“The State Government may remove from the board a member who in its opinion had so flagrantly abused in any manner his position as a member of the board as to render his continuance as a member deterimental to the public interest.”
9. According to the charges frame against the respondent he was allege to have flagrantly abused his position as a member because he had passed two orders mentioned in the charge sheet. It is urged on behalf of the appellants that under the statute the State Government was the final authority to decide whether the acts complained of amounted to a flagrant abuse of the respondent's position as a member. The argument is that if the orders passed were in contravention of the provisions of the U.P Municipalities Act or the bye-laws framed thereunder, the Government could form the opinion that the acts amounted to a flagrant abuse of the respondent's position as a member. It was not necessary, it is contended, for the Government to allege further that the acts had been committed with a sinister motive. There may be acts, it is stated, which can be considered to be a flagrant abuse only because of some oblique motive behind them; Shri Bhagwan Das Barnwal's case (supra) may be an instance of such acts. Such a motive is not, it is contended, necessary in every case; some acts can amount to a flagrant abuse even without such a motive.
10. The point is in our opinion concluded against the appellants by the decision of this Court in Shri Purshottam Chandra v. State of Uttar Pradesh . 1957 A.L.J 885.. It was pointed out in that case that the two conditions precedent for taking action under Sec. 40(3) of the Municipalities Act were that the conduct of the member to which exception was taken must be conduct in his capacity as a member and that the conduct should be such as can amount to a flagrant abuse of his position as a member. Rejecting the precise argument now being advanced it was observed:—
“Learned counsel's argument is that a member abuses his position as a member of the board if, while he is a member, he contravenes any of the provisions of the Municipalities Act or the bye-laws made thereunder. We are unable to accept this view, but, even if it be correct, the conduct of the appellant is not such as would bring him within this definition. The learned Judge has held, and we think rightly, that while he was a member the appellant contravened no bye-law; if contravention there was, it occurred when the construction of the building commenced, and this was before the appellant became a member. Without attempting an exhaustive definition, we are of opinion that a member abuses his position as a member when he misuses his position for the benefit of himself or some other person.”
11. According to the dictionary ‘flagrantly’ as an adverb means ‘glaringly’, ‘notoriously’ or ‘scandalously’ and ‘abuse’ as a transitive verb means ‘misuse’, ‘make bad use’ or ‘use for a wrong purpose or need’, and ‘take a bad advantage.’ The use of the expression ‘flagrantly abused’ in sub-Sec. (3) of Sec. 40 therefore requires that even if there is no sinister or oblique motive there must be something to show that in committing the acts complained of the member concerned was using his position as a member for a wrong purpose, or that he was taking some advantage of his position which he ought not to have taken and that he was doing so in a glaring and scandalous manner. Without unduly stretching the meaning of the expression, therefore, an act cannot be brought within its purview simply because it in some way contravenes any of the provisions of the Municipalities Act or the bye-laws made thereunder. It was not said in the charge-sheet in connection with either of the two orders passed by the respondent that in passing them he had in any scandalous way attempted to misuse his position as a member. The charges were, therefore, not such as could attract action against the respondent under sub-Sec. (3) of Sec. 40 of the Act.
12. The respondent also appears to have been justified in his complaint that he was not given a reasonable opportunity of explaining the charges. The orders, the subject matter of the charges had been passed long before the charges were framed. The relevant papers were not with the respondent in order to enable him to fully explain the circumstances in which the orders were passed. He pointed out that handicap in the explanation which he submitted but without making the papers available to him and thus enabling him to completely explain his position the State Government decided to remove him from membership. Under sub-Sec. (4) of Sec. 40 of the Act before action could be taken under sub-Sec. (3) an opportunity of explanation which in the context means a reasonable opportunity was bound to be given to the member concerned. Learned counsel for the appellants urged that the respondent never asked for the papers. In the circumstances of the case a specific request in that respect could not have been insisted upon. The respondent having mentioned in his reply that he was not in a position to give a detailed explanation in the absence of the necessary file, before taking the drastic action contemplated by sub-Sec. (3) the authorities should have made, the papers available to the respondent.
13. The order of the respondent's removal thus appears to have been rightly set aside. The appeal has no force and is dismissed with costs.
Appeal dismissed.
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